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94 2d Boston 88 } COMMITTEE PRINT 






THE NATIONAL EMERGE JH8I|^ACT 
(PUBLI^ "LAW 94r4}2)« f 

Source Book: Legislatr^fKl5$0Fj / /Texts, and 
Other Documents 



COMMITTEE ON GOVERNMENT OPERATIONS 

AND THE 

SPECIAL COMMITTEE ON NATIONAL 

EMERGENCIES AND DELEGATED 

EMERGENCY POWERS 

UNITED STATES SENATE 




NOVEMBER 1976 



M ld SoT 8 } [COMMITTEE PRINT] 



THE NATIONAL EMERGENCIES ACT 
(PUBLIC LAW 94-412) 

Source Book: Legislative History, Texts, and 
Other Documents 



COMMITTEE ON GOVERNMENT OPERATIONS 

AND THE 

SPECIAL COMMITTEE ON NATIONAL 

EMERGENCIES AND DELEGATED 

EMERGENCY POWERS 

UNITED STATES SENATE 




NOVEMBER 1976 



U.S. GOVERNMENT PRINTING OFFICE 
66-474 O WASHINGTON : 1976 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 - Price J3.30 



COMMITTEE ON GOVERNMENT OPERATIONS 
ABRAHAM RIBICOFF, Connecticut, Chairman 
JOHN L. McCLELLAN, Arkansas CHARLES H. PERCY, Illinois 

HENRY M. JACKSON, Washington JACOB K. JAVITS, New York 

EDMUND S. MUSKIE, Maine WILLIAM V. ROTH, Jr., Delaware 

LEE METCALF, Montana BILL BROCK, Tennessee 

JAMES B. ALLEN, Alabama LOWELL P. WEICKER, Jr., Connecticut 

LAWTON CHILES, Florida 
SAM NUNN, Georgia 
JOHN GLENN, Ohio 

Richard A. Wegman, Chief Counsel and Staff Director 

Paul Hopf, Counsel 

Paul L. Leventhal, Counsel 

Eli E. Nobleman, Counsel 

David R. Schaefer, Counsel 

Matthew Schneider, Counsel 

Fred Asselin, Investigator 

Ellen S. Miller, Professional Staff Member 

John B. Childers, Chief Counsel to the Minority 

Brian Conboy, 'Special Counsel to the Minority 

Marilyn A. Harris, Chief Clerk 

Elizabeth A. PreAst, Assistant Chief Clerk 

Harold C. Anderson, Staff Editor 



SPECIAL COMMITTEE ON NATIONAL EMERGENCIES AND 
DELEGATED EMERGENCY POWERS 

FRANK CHURCH, Idaho Co-Chairmen CHARLES McC. MATHIAS, Jr., Maryland 
PHILIP A. HART, Michigan CLIFFORD P. CASE, New Jersey 

CLAIBORNE PELL, Rhode Island JAMES B. PEARSON, Kansas 

ADLAI E. STEVENSON III, Illinois CLIFFORD P. HANSEN, Wyoming 

Jerry M. Brady, Staff Director 
William K. Sawyer, Professional Staff 
Gayle D. Fitzpatrick, Chief Clerk 

(II) 



LETTER OF TRANSMITTAL 



U.S. Senate, 
Committee ox Government Operations. 

Washington. B.C.. October 20. 1976. 
Hon. Nelson A. Rockefeller. 
P resident of the Senate. 
The Capitol. Washington, D.C. 

Dear Mr. Vice President: The Committee on Government Opera- 
tions transmits herewith for publication as a committee print a com- 
pilation of materials relative to the legislative history of the National 
Emergencies Act which was signed by the President on September 14. 
1976 (Public Law 94-412). 

This material, referred to as a Source Book, summarizes the activi- 
ties of the Special Committee on National Emergencies and Delegated 
Emergency Powers, and the work of the Senate and the House of 
Representatives and the Senate Committee on Government Operations 
and the House Committee on the Judiciary, which processed the legis- 
lation in their respective Houses. 

The Special Committee terminated its existence on April 30, 1976. 
and its co-chairmen requested the Committee on Government Opera- 
tions to assume responsibility for the completion of the Source Book. 

It is believed that this compilation will prove valuable and useful to 
scholars and other interested and affected persons. 

Abe Ribicoff, Chairman. 
(in) 



PREFACE 

This compilation of materials relating to the legislative history of 
Public Law 94— ±12. the National Emergencies Act. summarizes the 
three-year investigative and legislative activity culminating in this 
statute designed to guide the exercise of national emergency powers. 

These efforts were undertaken by a special Senate study commit- 
tee — The Special Committee on the Termination of the National 
Emergency which was later renamed The Special Committee on Xa- 
tional Emergencies and Delegated Emergency Powers — and two 
legislative committees, the House Committee on the Judiciary and the 
Senate Committee on Government Operations. 

This sourcebook was prepared by Dr. Harold C. Relyea. Congres- 
sional Research Service. Library of Congress, and William K. Sawyer 
and Gayle D. Fitzpatrick of the Special Committee. 

(V) 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/mergencOOunit 



INTRODUCTION 

Passage of the National Emergencies Act culminates three years of 
work by the Special Committee on National Emergencies and Dele- 
gated Emergency Powers. The legislation terminates powers and au- 
thorities possessed by the President as a result of existing states of 
national emergency and establishes procedural guidelines for the han- 
dling of future emergencies with provision for regular Congressional 
review. The bill should end the disarray that has characterized emer- 
gency laws and procedures in the United States. 

To understand the full significance of the National Emergencies 
Act, one must place it within the context of Congressional efforts to 
reclaim prerogatives abandoned to the Executive. The Vietnam War 
and the abuses known collectively as "Watergate*' have led Congress to 
assume a more prominent role, most notably in foreign policy and the 
budgetary process. It has enacted a War Powers Act, defeated major 
weapons proposals, investigated the intelligence community, and 
moved to impeach a President. Congress has insisted upon increased 
Executive accountability and greater freedom of information. The Na- 
tional Emergencies Act is consistent with these efforts to make the Ex- 
ecutive accountable for his actions and to restore Congress as an equal 
partner in the government. 

This sourcebook is a chronicle of the efforts behind this one Act. We 
trust that scholars will find this document helpful and hope that the 
nation enjoys such domestic tranquility that its authorities are never 
invoked. 

Frank Church. 

Charles McC. Mathias, Jr., 

Coch airmen. 

I VII i 



CONTENTS 



Page 
Letter of transmittal in 

Preface v 

Introduction vn 

I. The Evolution of the National Emergencies Act (Public Law 94— 112) 1 

II. The Special Committee on the Termination of the National Emergency/ 
National Emergencies and Delegated Emergency Powers 13 

A. Initial authorizing resolution of the Special Committee (Congres- 

sional Record, v. 118, May 23, 1972: pp. S18367-S 18369) 13 

B. A Recommended National Emergencies Act (S. Rept. 93-1170) 19 

C. Pinal report of the Special Committee on National Emergencies 

and Delegated Emergency Act (S. Rept. 94-922) 29 

III. The National Emergencies Act (Public Law 94-412) 71 

A. Introduction of S. 3957, 93d Congress (Congressional Record, v. 

120, August 22, 1974: pp. S15784-S15794) 71 

B. Text of S. 3957, 93d Congress 92 

C. Report on S. 3957, 93d Congress, by the Committee on Government 

Operations, United States Senate (S. Rept. 93-1193) 95 

D. Debate and adoption of S. 3957, 93d Congress, by the United States 

Senate (Congressional Record, v. 120, October 7, 1974: pp. 
S18356-S18367) 145 

E. Introduction of H.R. 16668, 93d Congress (Congressional Record, v. 

120, September 16, 1974: p. H9266, H9296) 175 

F. Text of H.R. 16668, 93d Congress 177 

G. Introduction of H.R. 3884, 94th Congress (Congressional Record, v. 

121, February 27, 1975: p. H1225) 179 

H. Text of H.R. 3884, 94th Congress 180 

I. Report on H.R. 3884, 94th Congress, by the Committee on the Judi- 
ciary, House of Representatives (H. Rept. 94-238) 183 

J. Debate and adoption of H.R. 3884, 94th Congress, by the House of 
Representatives (Congressional Record, v. 121, September 4, 
1975: pp. H8325-H8341) 239 

K. Introduction of S. 977, 94th Congress (Congressional Record, 

v. 121, March 6, 1975: p. S3202) 285 

L. Text of S. 977, 94th Congress 287 

M. Report on H.R. 3884. bv the Committee on Government Operations, 

U.S. Senate (S. Rept. 94-1168) 290 

N. Debate and adoption of H.R. 3884 by the U.S. Senate (Congres- 
sional Record, v. 122, August 27. 1976, pp. S14840-S14844) 332 

O. Adoption of Senate amendments to H.R. 3884, 94th Congress, by the 
House of Representatives (Congressional Record, v. 122, August 
31, 1976, p. H9253) 341 

P. Text of President's statement upon signing H.R. 3884 "Weekly Com- 
pilation of Presidential Documents", v. 12, September 20, 1976. 
p. 1340 343 

Q. Text of Public Law 94-412, the National Emergencies Act (90 Stat. 

1255) 344 

Appendixes 

A. Proclamations of national emergency terminated by Public Law 
94-412 351 

B. The Federal Government and National Emergency Powers : A 

General Bibliography 355 

(rx) 



I 

THE EVOLUTION OF THE NATIONAL EMERGENCIES ACT 
(PUBLIC LAW 94-412)* 

Momentary exigencies in the life of a democracy may require the 
temporary exercise of extraordinary power to ensure the continued 
existence of that state and the preservation of the freedoms and rights 
guaranteed to its citizens during normal times. The aim of the Na- 
tional Emergencies Act is to insure that the exercise of national emer- 
gency authority is responsible, appropriate, and timely. 

The origins of national emergency power in the evolution of Amer- 
ica's national government can be traced to legislation enacted in 1775 
by the Continental Congress. 1 Shay's Rebellion was probably the first 
emergency test for the new Federal administration. Lentil the crisis 
of World War I, Presidents utilized emergency authority, whether 
specified in the statutes or implied by the Constitution, at their own 
discretion. Special Presidential proclamations often announced the 
exercise of this exigency authority. Since the period of the First 
World War. the Chief Executive has, by means of a proclamation, 
declared a condition of national emergency, sometimes confining the 
matter of crisis to a specific policy sphere and sometimes placing no 
limitation on the pronouncement whatsoever. 

National emergency proclamations 

The first national emergency proclamation, explicitly issued as such, 
was made (39 Stat. 1814) by President Woodrow Wilson on Febru- 
ary 5, 1917. Issued by virtue of the authority conferred upon the 
President bv legislation establishing the United States Shipping 
Board (39 Stat. 728), the proclamation was concerned with matters 
of water transportation policy. It was terminated, along with a variety 
of other wartime measures, bv statute (41 Stat. 1359) on March 3, 
1921. 

The next national emergencv proclamation was issued (48 Stat. 
1689) by President Franklin fo. Roosevelt on March 6, 1933, some 
48 hours after assuming office. Issued upon the somewhat questionable 
authority of the Trading With the Enemy Act of 1917 (40 Stat. 411), 
the proclamation declared a "bank holiday" and halted all financial 
transactions by closing the banks. The Chief Executive's action and 
proclamation were sanctioned by Congress with the passage of the 
Emergency Banking Act (48 Stat. 1) on March 9. The day this legis- 
lation was signed into law the President issued a second banking proc- 
lamation (48 Stat. 1691), based upon the authority of the new law, 
continuing the bank holiday until the various banking institutions 

*Prepared for the Special Committee by Harold C. Relyea, Analyst in American Na- 
tional Government. Government Division. Congressional Research Service, Library of 
Congress, under the direction of the staff of the Special Committee. 

1 For a concise history of the evolution and exercise of emergency powers in the 
United States spp U.S. Congress. Senate. Special Committee on National Emergencies 
and Delegated Emergency Powers. A Brief History of Emergency Powers in the United 
States by Harold C. Relyea. Committee print 93rd Congress, 2d session. Washington, 
U.S. Govt. Print. Off., 1974. 

(1) 



established that they were capable of conducting business in accord- 
ance with new banking policy. 

Actually, the powers possessed by the President as a result of this 
emergency proclamation continued in force until their termination 
was provided for in the National Emergencies Act, some four decades 
later. 

On February 28, 1935, President Roosevelt promulgated a proclama- 
tion (49 Stat. 3438) which, while it did not directly announce a con- 
dition of national emergency, recognized the continuation of an exist- 
ing national emergency in the agricultural industry. Accordingly, the 
proclamation established the effective dates of the Cotton Control Act 
(48 Stat, 598) approved April 21, 1934. It was repealed on Febru- 
ary 10, 1936 (49 Stat. 1106). 

On September 8, 1939, President Roosevelt issued a proclamation 
(54 Stat. 2643) of "limited" national emergency, though the law gave 
no recognition to the qualifying term. Two years later, on May 27, 
1941, the President issued a proclamation (55 Stat. 1647) of "un- 
limited" national emergency. This action did not add any new powers 
to the list of emergency authorities made available to the Chief Execu- 
tive by the 1939 proclamation. Instead, the action was a political 
gesture prompted by the conflict in Europe and growing tensions in 
Asia. 

These two war-related proclamations of a general condition of na- 
tional emergency remained in effect until 1947 when certain specific 
emergency and war statute provisions were terminated by a law (61 
Stat. 449) approved on July 25 that year. Earlier, on September 29, 
1945, President Truman had, by proclamation (59 Stat. 886), with- 
drawn certain emergency provisions of the Internal Revenue Code as 
the end of hostilities in both theaters of war made their use no longer 
warranted. 

On October 19, 1951, Congress terminated (65 Stat. 451) the declara- 
tion of war against Germany. On March 20, 1952, the Senate ratified 
the treaty of peace with Japan. Because these actions legally estab- 
lished the end of World War II, congressional action was required to 
continue certain emergency provisions. By joint resolution, Congress 
enacted the Emergency Powers Interim Continuation Act (66 Stat. 
54) to maintain such emergency authority and continued to extend the 
life of the measure (66 Stat. 96; 66 Stat. 137; 66 Stat. 296) until the 
Emergency Powers Continuation Act was prepared and ratified (66 
Stat. 330) . This latter statute was continued (67 Stat. 18 ; 67 Stat. 131) 
until August, 1953, when its emergency authorities were finally allowed 
to elapse. On April 28, 1952, President Truman terminated by procla- 
mation (66 Stat. c31) the 1939 and 1941 declared emergency conditions, 
leaving operative only those statutorily continued by the above noted 
laws. 

Truman's 1952 termination announcement specifically exempted a 
proclamation of national emergency (64 Stat. A454) issued by Tru- 
man on December 16, 1950. The 1950 national emergency, proclaimed 
to provide the Chief Executive with additional powers to respond to 
hostilities in Korea, remained operative until 2 years after the enact- 
ment of the National Emergencies Act. 

That legislation also provided for the effective termination of two 
emergency proclamations issued by President Richard M. Nixon. One 



proclamation was issued on March 23, 1970, in response to a postal 
strike. A second proclamation, issued on August 23, 1971, announced 
a national emergency with regard to balance of payments in overseas 
trade. 

Congressional concerns 

As the years passed, concern was expressed in Congress over the 
fact that President Truman's 1950 proclamation of national emer- 
gency continued to exist long after the conditions prompting its issu- 
ance had disappeared. (Other proclamations of emergency were not 
apparent until studies disclosed their existence in 1973.) Senator 
Charles McC. Mathias (R-Md.), in particular, was concerned that the 
President was retaining extraordinary powers intended only for time 
of genuine emergency and that the Chief Executive was thwarting 
the legislative intent of the Congress by his failure to terminate the 
declared national emergency. At the same time, concern over the Presi- 
dent's exercise of war powers was growing as the United States be- 
came deeply embroiled in hostilities in Vietnam. In the course of 
examining American commitments in Southeast Asia, efforts were 
initiated to bring a special focus to bear on the exercise of national 
emergency powers. As Senator Mathias, a leader in this policy area, 
later testified : 

My own interest in the question of emergency powers developed out of our 
experience in the Vietnam War and the incursion into Cambodia. It became clear 
that the President had powers to commit us to warfare without adequate respect 
for the constitutional requirement that Congress alone can declare a state of war. 
During the years 1969-1972, particularly, I introduced or cosponsored numerous 
bills to repeal Congressional resolutions in support of the President's actions, for 
example, in Formosa and the Gulf of Tonkin. In 1971, I submitted Senate Con- 
current Resolution 27 to establish a special joint committee to study the effect 
of terminating the first state of emergency we found in existence, that declared 
by President Truman in 1950 during the Korean War. Then on May 23, 1972, I 
introduced, with Senator [Frank] Church's co-sponsorship, Senate Resolution 304, 
which called for the creation of the Senate Special Committee on the Termination 
of the National Emergency. The committee was to be empowered "to conduct a 
study and investigation with respect to the termination of the 1950 emergency," 
to consider problems which might arise as the result of the termination _and to 
consider what administrative or legislative actions might be necessary. 2 

The Special Committee was initially established after S. Res. 304 
was considered and reported bv the .Foreign Relations Committee (S. 
Rept. 92-858, June 2, 1972) and the Senate Rules and Administration 
Committee (S. Rept. 92-914, June 21, 1972). Reported from the latter 
panel with technical amendments, the resolution was adopted by the 
Senate on June 23. 

With the convening of the 93rd Congress, the Special Committee on 
the Termination of the National Emergency was again approved on 
January 6, 1973, through S. Res. 9 after the Foreign Relations Com- 
mittee was discharged from any further consideration of the instru- 
ment. The Special Committee was subsequently continued by S. Res. 
242, reported (S. Rept. 93-715) from the Committee on Rules and 
Administration on February 28, 1974, and voted by the chamber on 
March 1. With this measure the name of the panel was changed to the 
Special Committee on National Emergencies and Delegated Emer- 

2 U.S. Congress. House. Committee on the Judiciary. Subcommittee on Administrative 
Law and Governmental Relations. National Emergencies Act. Hearings, 94th Congress, 
1st session. March 6, 13, 19, and April 9, 1975. Washington, U.S. Govt. Print. Off., 
1975, p. 20. 



gency Powers to reflect its focus upon matters apart from the 1950 
emergency proclamation. 

At the opening of the 94th Congress, the Special Committee's man- 
date was again extended with S. Res. 10 which was discharged from 
the Foreign Relations Committee on February 5 and referred to the 
Rules and Administration Committee where it was reported (S. Rept. 
94-323) on July 23 and adopted three days later on July 26, 1975. 

Unexpected legislative delay necessitated extension of the Special 
Committee's life for an additional two months in 1976. S. Res. 370, 
which authorized the extension, was introduced in the Senate on Jan- 
uary 30, reported by the Rules and Administration Committee (S. 
Rept. 94-672) on February 26, and passed by the Senate on March 1, 
1976. 

Committee operations 

The Special Committee was organized and prepared to begin its 
studies of emergency powers matters by the first week of January, 
1973. 3 During its entire life, the panei was co-chaired by Senator 
Frank Church (D. -Idaho) and Senator Charles McC. Mathias, Jr. 
(R.-Md.). Other members of the unit during its existence were Sen- 
ators Philip A. Hart (D.-Mich.), Clifford P. Case (R.-N.J.), Clai- 
borne Pell (D.-R.L), James B. Pearson (R.-Kan.), Adlai E. Steven- 
son III (D.-Ill.), and Clifford P. Hansen (R.-Wyo.). Generally, 
during the 93rd Congress, the principal research and investigative 
staff members of the Special Committee were William G. Miller, Staff 
Director, and Thomas A. Dine. For the 94th Congress, the panel was 
assisted by Jerry M. Brady, Staff Director, and William K. Sawyer. 

An expression of the spirit and manner of procedure followed by 
the Special Committee may be found in the following (April 11, 1973) 
statement by Co-chairman Mathias : 

The committee's bipartisan nature reflects the intention of the Senate to 
examine emergency powers legislation solely from a constitutional perspective. 
We want to determine how these powers affect the proper relationship between 
the Executive and Legislative branches. For this reason, as specified by the 
authorizing resolution, the Special Committee is working closely with the Admin- 
istration. Attorney General [Richard] Kleindienst, in response to a specific 
request of the Special Committee, has assigned members of the Justice Depart- 
ment to work with the staff of the Special Committee, and, we are happy to report 
that cooperation from the Justice Department has been full and thorough. It is 
expected that other departments and agencies will provide similar assistance. 

The first and most difficult task of the Special Committee is to be certain that 
all of the statutes and relevant Executive Orders have been collected for study 
and deliberation. At the present time, nowhere in the government — either in 
Congress or in the Executive Branch — is there a complete catalogue of statutes 
and Executive Orders pertaining to emergency powers. The staff of the Commit- 
tee has undertaken — in cooperation with the Library of Congress, the General 
Accounting Office, and the Justice Department — a computer search of all relevant 
statutes in the U.S. Code. These findings are now being checked by the staff and 
we expect that a reasonably complete catalogue of all emergency power statutes 
will be issued as a committee print. 

When the statutes and Executive Orders are assembled, the Special Committee 
intends to work with the appropriate Executive departments and agencies to 
review every statute to determine which statutes would be required in the event 
of a future emergency. This process, in essence, would be an evaluation of their 



3 U.S. Congress. Senate. Special Committee on the Termination of the National Emer- 
gens. Review and Manner of Investigating Mandate Pursuant to S. Res. 9. 93d Congress : 
A Working Paper. Committee print. 93d Congress, 1st session. Washington, U.S. Govt. 
Print. Off., 1973, p. 17. 



present and future utility. Concurrently, the Special Committee intends to consult 
with each standing committee of the Senate with regard to the particular emer- 
gency powers that apply to its separate area of responsibility, and, to ask for its 
judgment on which should be amended. 4 

Early in its work, the panel became aware of the existence of proc- 
lamations of national emergency other than the 1950 declaration and 
began grappling with a growing canon of emergency law revealed 
through diligent research. 5 Ultimately, three compilations were pro- 
duced by the unit. The first of these, released in the autumn of 1973, 
identified 470 provisions of Federal law delegating extraordinary au- 
thority to the Executive in time of national emergency. The second 
study, appearing in the spring of 1974, identified a panoply of Execu- 
tive Orders and Presidential proclamations implementing or otherwise 
bearing upon the exercise of emergency power by the Executive. 7 And 
the final research product, offered during the summer of 1974, briefly 
surveyed the history of the utilization and evolution of Federal emer- 
gencv power from the earliest days of the Republic to the closing 
months of 1974. 8 

On April 11, 1973, the Special Committee began public hearings on 
the matter of national emergencies and the status of emergency powers, 
the first such deliberations by a congressional panel since 1952. 9 The 
proceedings of April 11 and 12 and Xovember 28 were devoted to con- 
stitutional questions concerning emergency powers with some of the 
leading constitutional scholars of the country offering their views to 
the panel. Professor Robert S. Rankin of Duke University (Emeritus) , 
Professor Cornelius P. Cotter of the University of Wisconsin, and 
Professor J. Malcom Smith of the California State University testified 
before the Special Committee on general historical and legal matters 
pertaining to emergency powers. Dean Adrian S. Fisher of the George- 
town University Law School addressed the circumstances surrounding 
the declaration of the 1950 national emergency, citing his experience 
as an advisor to President Truman at the time that declaration was 
made. Dr. Gerhard Casper, Professor of Law and Political Science 
at the University of Chicago, spoke before the panel regarding con- 
stitutional matters surrounding Executive use of emergency powers 
and comparing the experiences of other democratic states, particularly 
those of the German Weimar Republic. On Julv 24, former Attornevs 
General Tom C. Clark (1945-1949), Xicholas deB. Katzenbach (1965- 
1967), and Ramsey Clark (1967-1969) offered their historical and 
professional views on the emergency powers situation. After his 



* U.S. Congress. Senate. Special Committee on the Termination of the National Emer- 
gency. National Emergency. Hearings, 93d Congress. 1st session. April 11, 1973. Wash- 
ington, U.S. Govt. Print. Off.. 1973, pp. 4-5. 

5 See U.S. Congress. Senate. Special Committee on the Termination of the National 
Emergency. Review and Manner of Investigating Mandate Pursuant to S. Res. 9, 93d 
Congress : A Working Paper. Committee print, 93d Congress. 1st session. Washington, 
U.S. Govt. Print. Off.. 1973, pp. 2-6. 

G See U.S. Congress. Senate. Special Committee on the Termination of the National 
Emergency. Emergency Powers Statutes : Provisions of Federal Law Now in Effect Dele- 
gating to the Executive Extraordinarv Authoritv in Time of National Emergency. Com- 
mittee print. 93d Congress. 1st session. Washington, U.S. Govt. Print. Off., 1973. [Also 
issued as S. Rept. 93-549 and in an abridged form.] 

7 See U.S. Congress. Senate. Special Committee on National Emergencies and Delegated 
Emergencv Powers. Executive Orders in Times of War and National Emergency. Com- 
mittee Print. 93d Congress, 2d session. Washington, U.S. Govt. Prin{. Off., p. 1974. 

8 See Note 1. 

9 See U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 4. Emergency 
Powers Continuation Act. Hearings. S2d Congress. 2d session. February 27. 28. 29, 
March 6. 7, 12. 13. 21. 24, 26. 28, April 2, 7, 25, 28, 1952. Washington, U.S. Govt. Print. 
Off., 1952. 



6 

resignation as head of the Justice Department, Elliot Richardson pre- 
sented his views to the Special Committee as did former Solicitor Gen- 
eral Erwin N. Griswold ( 1967-1972 ). 10 After these hearings were 
concluded, the Special Committee, on August 22, 1974, issued an in- 
terim report (S. 93-1170) of findings and recommendation, saying, in 
part: 

In our view, Congress should provide statutory guidelines to assure the full 
operation of constitutional processes in time of war or emergency. This is the 
best prescription to avoid any future exercise of arbitrary authoritarian power. 
For as the Youngstown Case [Youngstown Sheet & Tube Company v. Sawyer, 
343 U.S. 579 (1952)] decided where there is a statute, the Executive is obliged 
to use the statutory remedy ; where there are no lawful statutory guidelines is 
to invite so-called inherent powers to come into play. There is without question 
a need, in the view of the Special Committee, to provide the Executive branch 
with an effective, workable method for dealing with future emergencies in accord 
with constitutional processes. The Special Committee has sought to do this in 
fulfillment of its mandate. 

By unanimous approval of its membership on July 11, the Special 
Committee recommended legislation "[t]o terminate certain authori- 
ties with respect to national emergencies still in effect, and to provide 
for orderly implementation and termination of future national emer- 
gencies." As proposed, the measure (1) would terminate, after 271 
days from the date of enactment, all powers and authorities conferred 
by law upon the President or his Executive branch subordinates and 
all powers and authorities conferred by any Executive Order pursuant 
to law as a result of the existence of any national emergency currently 
in effect, (2) established a procedure whereby future proclamations of 
a national emergency by the Chief Executive would have to be pub- 
lished in the Federal Register and in accordance with the requirements 
of the act, (3) required that the President indicate what provisions of 
emergency law he sought to have come into effect upon proclaiming a 
national emergency with notice of same being made both to Congress 
and in the Federal Register, (4) provided that a proclamation of na- 
tional emergency would terminate after 180 days from date of declara- 
tion unless terminated earlier or extended by an act of Congress, (5) 
required that pertinent executive branch orders, rules, and regula- 
tions having a bearing upon the exercise of national emergency author- 
ity be maintained in a file, indexed, and otherwise made known to 
Congress, and (6) repealed certain provisions of emergency law 
deemed no longer worthy of continuation. In arriving at this 
recommended legislation, the Special Committee had consulted the 
Executive regarding the utility of existing emergency statutes, recom- 
mendations for legislative action, and views as to the repeal of certain 
provisions of emergency law. 11 

National Emergencies Act 

The Special Committee's recommended legislation (S. 3957) was 
introduced in the Senate on August 22, 1974, by Senator Church for 

10 See U.S. Congress. Senate. Special Committee on the Termination of the National 
Emergency. National Emergency. Hearings, 93d Congress, 1st session. April 11, 12 ; 
July 24; [and] November "28, 1073. Washington, U.S. Cxovt. Print. Off.. 1973. 

11 These views have been collected and published in U.S. Congress. Senate Special 
Committee on National Emergencies and Delegated Emergency Powers. Executive Replies : 
Evaluation of Emergenev Powers Statutes. Committee print, 93d Congress, 2d session. 
Washington, U.S. Govt. Print. Off., 1974 ; . . . Executive Replies : Sum- 
maries of the Executive Branch and Committee Recommendations. Committee print, 93d 

Congress, 2d session. Washington. U.S. Govt. Print. Off., 1974 ; . . . 

Executive Replies : Statutes at Large. Committee print, 93d Congress, 2d session, Wash- 
ington, U.S. Govt. Print. Off., 1974. 



himself and seven other members of the panel (Senators Mathias, 
Case, Hansen, Hart, Pearson, Pell and Stevenson) as well as Sena- 
tors Lawton Chiles (D.-Fla.) and Sam Erwin (D.-N.C.). 12 Oth*r 
subsequent co-sponsors included Senators Harrison Williams (D.- 
N.J.), Edmund Muskie (D.-Maine), Jacob Javits (R.-N.Y.), Abra- 
ham Ribicoff (D.-Conn.) and William Roth (R.-DeL). Referred to 
the Committee on Government Operations, the measure was reported 
(S. Rept 93-1193) on September 30 without public hearings or amend- 
ment. The bill was debated on October 7, at which time Senator 
Mathias offered certain amendments suggested in behalf of the Presi- 
dent by the Office of Management and Budget which were accepted, 
and adopted. 13 Summarizing the proposed amendments, Senator 
Mathias said : 

What they do is very simple. They extend the grace period' [regarding the re- 
peal of certain emergency power provisions of the U.S. Code] provided in the 
bill from nine months to a year. 

They provide that while Congress can terminate a national emergency at 
any time by a concurrent resolution, there will be no automatic termination 
after six months if there is no affirmative action. This has been replaced by a 
requirement for the Congress to meet every six months to consider whether 
to terminate an emergtncy. An expedited privileged procedure would assure 
consideration and a vote should the Congress so decide. 

We have reduced the list of statutes to be repealed. In working with the 
other body, partially as a result of special committee studies, most of the pro- 
visions that have been deleted from our original list are to be taken care of in 
various deadwood projects by the Codification Committee of the House of 
Representatives. 

There are six statutes which are to be exempted from the provisions of this 
act. These statutes include Trading With the Enemy Act, a Ready Reserve 
provision, purchasing contract lease and claims authorities believed by the 
Executive branch to be absolutely essential for the operation of government. 
There is a requirement that the committees with jurisdiction over these provi- 
sions must make a study and report recommendations within nine months about 
modifications or any other changes to be made. 

Finally, the requirement for accounting of expenditures incurred under the 
authority of emergency powers statutes . . . has been included. 14 

Although a version of the Special Committee's recommended legis- 
lation was introduced in the House (H.R. 16668) by Representative 
Peter Rodino, Jr. (D.-N.J.) on September 16, the Committee on the 
Judiciary, to which the measure was referred, did not have an op- 
portunity to consider either that bill or the Senate adopted proposal 
due to the press of other business, chiefly the impeachment of Presi- 
dent Richard M. Nixon and the nomination of Nelson A. Rockefeller 
to be Vice President of the United States. 15 The National Emergen- 
cies Act thus failed to obtain passage in both Houses of Congress be- 
fore the expiration of the 93rd Congress. 

With the convening of the next Congress, the proposal was again 
introduced in both chambers. In the House, Representative Rodino 
offered the bill (H.R. 3884) for himself, Representatives Walter 
Flowers (D.-Ala.), George Danielson (D -Calif.), Barbara Jordan 
(D.-Tex.), Romano Mazzoli (D.-Ky.), Edward Pattison (D.-N.Y.), 
and Hamilton Fish, Jr. (R.-N.Y.) on February 27, 1975. 16 Special 



12 Congressional Record, v. 120. August 22. 1974 [Daily edition], S15784-15794. 

13 Ibid., October 7. 1974 [Daily edition], pp. S18356-S18367. 
u 7fti<7.. p. 18357. 

15 See Ibid., September 16. 1974 [Daily edition], p. H9266. 

1C See Ibid., v. 121, February 27, 1975 [Daily edition], p. H1260. 



66-474 O - 76 - 2 



8 

Committee Co-chairmen Church and Mathias introduced an identical 
measure (S. 977) in the Senate on March 6. 17 

Hearings were held in the House before the Subcommittee on Ad- 
ministrative Law and Government Relations, under the chairmanship 
of Representative Flowers, on March 6, 13, 19 and April 9. 18 Testi- 
mony was taken from a number of government witnesses; the bill 
was subsequently marked up and, on April 15, the Subcommittee re- 
ported, by a 4-0 vote, an amended version of the measure to the full 
Committee on the Judiciary. Major changes in the proposal included 
the addition of further emergency power provisions of the U.S. Code 
to the exemption from termination section of the legislation and an 
extension of the one year grace period on terminated provisions to two 
years. On May 21, the full Committee, by voice vote, reported (H.Rept. 
94-238) the bill with technical amendments. 19 

During the course of debate on the proposal on September 4, the 
House agreed to the Committee amendments, adopted an amendment 
providing that national emergencies end automatically one year after 
the declaration date unless the President transmits a message to Con- 
gress and prints notice in the Federal Register that the emergency 
is still in effect, and accepted the bill on a 388-5 yea-and-nay vote. 20 
The measure was then sent to the Senate and referred to the Committee 
on Government Operations. 21 

On May 28, 1976, the Senate Special Committee on National Emer- 
gencies and Delegated Emergency Powers issued its final report 
(S. Kept. 94—922). After summarizing its activities and efforts, the 
Special Committee urged immediate passage of the National Emer- 
gencies Act, close congressional committee scrutiny of the statutes 
exempted from the rescinding provisions of the Act, careful congres- 
sional review of future requests for permanent statutory emergency 
authority, vigilance in detecting potential efforts to bypass or circum- 
vent the intent of the Act. congressional inquiry into emergency pre- 
paredness efforts conducted by the Executive, congressional prepara- 
tion for dealing with a declared emergency (including continuous 
review of the canon of emergency law), striving to halt open-ended 
grants of authority to the Executive, more vigorous investigation and 
oversight of delegated powers, and improvement of accountability 
procedures with regard to Executive decision-making. 22 The Special 
Committee's mandate and operational authority terminated on April 
30. 

The Senate Committee on Government Operations subsequently re- 
ported (S. Kept. 94-1168) the National Emergencies Act on August 
26 with one substantive and several technical amendments. According 
to the panel's report : 

With respect to the substantive amendment, following consultations with 
several constitutional law experts, the committee concluded that section 201(a) 



17 Sep Ibid, March 6, 1975 [Daily edition], p. S3202. 

18 U.S. Congress. House Committee on the Judiciary. Subcommittee on Administrative 
Law and Governmental Relations. National Emerqency Act. Hearings, 94th Congress. 1st 
Session. March 0. 13. 19. and April 9, 1975. Washington. U.S. Govt. Print. Off., 1975. 

19 Congressional Record, v. 120. May 21. 1975 [Daily edition], p. H4577. 

20 Ibid., September 4. 1975 TDailv edition], p. H8327-H8341. 

21 Tbid., September 5. 1975 TDailv edition], p. S15373. 

22 U.S. Congress. Senate. Special Committee on National Emergencies and Delegated 
Emergency Powers. National Emergencies and Delegated Emergency Poicers. Washington, 
U.S. Govt. Print. Off., 1976. 38 p. (94th Congress, 2d session. Senate. Report No. 94-922). 



is overly broad, and might be construed to delegate additional authority to the 
President with respect to declarations of national emergency. In the judgment 
of the committee, the language of this provision was unclear and ambiguous 
and might have been construed to confer upon the President statutory authority 
to declare national emergencies, other than that which he now has through 
various statutory delegations. 

The Committee amendment clarifies and narrows this language. The Committee 
decided that the definition of when a President is authorized to declare a national 
emergency should be left to the various statutes which give him extraordinary 
powers. The National Emergencies Act is not intended to enlarge or add to Execu- 
tive power. Rather the statute is an effort by the Congress to establish clear 
procedures and safeguards upon him by other statutes. 

Therefore, the Committee : niendment makes no attempt to define when a dec- 
laration of national emergency is proper. The amendment simply requires the 
President to transmit to the Congress and publish in the Federal Register a 
Presidential declaration of national emergency authorized by other Acts of 
Congress. 23 

The following day the Senate adopted the bill with all committee 
amendments and returned the measure to the House. 24 On August 31 
the House agreed to the Senate amendments, clearing the proposal for 
the President's signature. 2 " 

President Ford signed the bill into law (Public Law 94-412) on 
September 14, 1976. 20 

Other Emergency powers action 

During the course of the adoption of the National Emergencies Act, 
three other significant emergency powers developments occurred. Al- 
though efforts were made to continue the authority, a title of the 
Federal Civil Defense Act of 1950 (50 U.S.C. App. 2297) granting 
the President or Congress power to declare a civil defense emergency 
whenever an attack on the United States occurred or was anticipated 
expired on June 30, 1974 after the House Committee on Rules failed 
to report on the measure extending the statute. 27 Thus, a means of 
declaring an emergency was terminated and statutes activated pursu- 
ant to this provision were relegated to permanent dormancy. 

By proclamation of February 19. 1976 (41 F.R. 7741), 'President 
Ford gave notice that E.O. 9066, providing for the interment of 
Japanese- Americans during World War II. was cancelled as of the 
issuance of the proclamation (11 F.R. 1) formally establishing the 
cessation of the hostilities of World War II on December 31. 1946. 
Certain statutory authority (18 U.S.C. 1383) relevant to this Execu- 
tive older is cancelled by the National Emergencies Act. 28 

Also, legislation was adopted (Public Law 94-286) on May 14, 
1976. granting the President the authority to order certain selected 
members of an armed services Reserve component to active duty other 
than during a state of war or a condition of national emergency. Pre- 

23 U.S. Congress. Senate. Committee on Government Operations. National Emergencies 
Act. Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session. Senate. Report 
94-1168), p. 3. 

2 * See Congressional Record, v. 112, Aug. 27, 1976 : S14840-S14844. 

23 See ibid., Aug. 31. 1976: H9253. 

26 See Weekly Compilation of Presidential Documents, v. 12, Sept. 20, 1976; 1340. 

27 See U.S. Congress. House. Committee on Armed Services. Full Committee Considera- 
tion of . . . H.R. 13329. . . . Hearings, 93d Congress, 2d session July 25, 1974. Wash- 
ington. U.S. Govt. Print. Off., 1974. 30 p. ; . . . Extending Civil De- 
fense Emergency Authorities. Washington, U.S. Govt. Print. Off., 1974. 22 p. (93d Cong., 
2d session. House. Report No. 93-1243). 

28 However, not all such authority is cancelled by the statute: see 10 U.S.C. 2152. 



10 

viously, this authority (10 U.S.C. 673) had been limited to a "time of 
national emergency declared by the President" or "when otherwise 
authorized by law." 29 



29 See U.S. Congress. Senate. Committee on Armed Services. Subcommittee on Manpower 
and Personnel. Military Manpower Issues of the Past and Future. Hearings, 93d Congress, 
2d session. August 13 and 14, 1974. Washington, U.S. Govt. Print. Off., 1974, pp. 7-9, 17, 

32-36, 38-40 ; . . . ; Reserve Call-Up. Hearings, 94th Congress, 

1st session. July 30, 1975. Washington, U.S. Govt. Print. Off., 1975. 35 p. ; . . 

Enabling the President to Authorize the Involuntary Order to Active Duty of 



Selected Reservists for a Limited Period Without a Declaration of War or National Emer- 
gency. Washington, U.S. Govt. Print. Off., 1975. (94th Congress, 1st session. Senate. 

Report No. 94-562) 23 p. ; . House. Committee on Armed Services. Full Committee 

Consideration of S. 2115. . . . Hearings, 94th Congress, 2d session. April 17, 1976. Wash- 
ington, U.S. Govt. Print. Off., 1976 ; 4 p. ; . . . Authority For Limited 

Reserve Mobilization. Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session. 
House. Report No. 94-1069) 27 p. ; Robert K. Musil. Troops for a Five-Star President. 
The Nation, v. 222, Feb. 28, 1976 : 238-241. 



II 

The Special Committee on the Termination of the National 

Emergency 

and 

The Special Committee on National Emergencies and 
Delegated Emergency Powers 

1. Initial authorizing resolution 

2. Recommended National Emergencies Act 

3. Final report 



INITIAL AUTHORIZING RESOLUTION OF THE 
SPECIAL COMMITTEE 

[Congressional Record— v. 118, May 23, 1972— pp. S18367-S18369] 

Senate Resolution 304 — Submission of a Resolution Authorizing 
Expenditures by the Special Committee on Termination of the 
National Emergency 

(Referred to the Committee on Foreign Relations.) 



Mr. Mathias. Mr. President, on behalf of Senators Pell, Hart, 
Church, Gravel, Eagleton, Cooper, Stevenson, Williams, Javits, 
Mansfield, Hartke, Case, Chiles, Cranston, and myself, I submit a 
resolution which is 20 years overdue. As my colleagues will recall, last 
year, with the cosponsorship of 15 other Senators, I submitted Sen- 
ate Concurrent Resolution 27 to establish a special joint committee to 
study the effects of terminating the state of national emergency de- 
clared by President Harry Truman in 1950. Today I am introducing a 
revised version of that resolution which reflects its consideration by 
the Senate Foreign Relations Committee, the Department of State, 
and a variety of concerned citizens and groups throughout the country. 

It may surprise some to learn that we are still in a state of national 
emergency proclaimed in the depth of the Korean War. And that 
while the Korean War has passed into history, the emergency pro- 
claimed to deal with that war remains in force. 

Based on authority granted by the Emergency Banking Act of 1933, 
a President can, by the simple expedient of declaring a national emer- 
gency, assume a vast web of powers rendering the Congress expend- 
able. This is not simply an interesting anachonism without practical 
force. The powers available to the President under this state of emer- 
gency are not trivial — fully some 200 special powers accrue to the 
President from it. In January, 1968, for example, President Johnson 
used it to control American investments abroad in an effort to ease 
that year's balance-of -payments crisis. In February, 1971, President 
Nixon invoked the same authority to suspend the provisions of the 
Davis-Bacon Act. 

In this past year, we have witnessed a striking application of Presi- 
dential emergency powers. With a single speech on August 15, Presi- 
dent Nixon did more than months of Senate hearings to dramatize 
the enormous arsenal of powers within the grasp of the Executive. 
Wielding authority granted him by law, the President drastically 
changed the economic course of the Nation and the world. By the time 
Congress returned three weeks later, it was required to legislate in a 
radically altered political and economic context. 

(13) 



14 

While the President's new economic policies represent a bold and 
necessary response to a serious crisis and they have my support, the 
powers he was able to invoke emphasize anew the scope of authority 
which Congress has relinquished to the Office of the President. Thus, in 
adding power over the dollar to his command of American military 
forces and his influence over mass media, the President has lent sup- 
port to the conclusion of Professor Duane Lockard, chairman of the 
Department of Politics at Princeton, that — 

In essence the Presidency has become an elective kingship with decisive power 
in a broad range of matters . . . He can start a war or end one ; he can breathe 
life into a domestic project or smother it. 

This situation is not without legislative precedent. Alas, Congress 
has frequently been accomplice in its own decline, conceding initiatives 
to the Executive and tolerating procedural abuses when their ends 
were agreeable. One need only name the Formosa Resolution of 1955, 
the Middle East Resolution of 1957, the Cuba Resolution of 1962, and 
the Gulf of Tonkin Resolution of 1964 to illustrate how readily Con- 
gress delivered up to the President large elements of its constitutional 
jurisdiction. 

Mr. President, the resolution which I am introducing today seeks to 
restore the constitutional balance between the Presidency and the Con- 
gress. It establishes a bipartisan Senate committee to study the prob- 
lems which may arise as the result of terminating our protracted state 
of national emergency and to consider the necessary or desirable legis- 
lative actions toward this end. It is expected that the committee's rec- 
ommendations would, among other things, have the effect of restoring 
to Congress its full constitutional authority to regulate commerce, and 
would clearly define a national emergency. Together with the War 
Powers bill which was passed by the Senate in April, this would serve 
to assure that emergency powers would only be applied for the dura- 
tion of genuine emergencies. 

In the effort to restore the constitutional balance between the Execu- 
tive and Legislative branches of our Government, the War Powers bill 
and now the emergency pow T ers resolution, represents a good start. We 
must press forward to see them passed this year. And we must repel 
any effort to bring them into the arena of partisan politics in this elec- 
tion year. Restoring to Congress its constitutional responsibility is an 
effort which must be joined by Republicans and Democrats, liberals 
and conservatives. Can we really afford the cavalier disdain of George 
Washington Plunkett, a Tammany Hall ward heeler who once asked : 

What's the Constitution among friends? 

I believe not. I believe it is now our task to press on in trying to make 
the Constitution work — among friends. 

Mr. President, upon introduction of my emergency powers resolu- 
tion last year, I spoke at length about the long and lamentable history 
of accumulation of power in the office of the President. I do not wish to 
take up my colleague's time today by reiterating my remarks, but I ask 
unanimous consent that they be printed in the Record at this point, 
together with the text of my resolution. 

[There being no objection, the remarks and resolution were ordered 
to be printed in the Record, as follows :] 



15 

Remarks of Mr. Mathias 

Mr. Mathias. Mr. President, last year, Congress revoked the Gulf of Tonkin 
Resolution of 1964. It was a first step in the long-overdue effort to restore to 
Congress its responsibilities under the Constitution for questions of war and 
peace. 

In February of this year, Senator Javits introduced S. 731, A Bill to Regulate 
Undeclared War. Also in February, Senator Church introduced Senate Joint 
Resolution 48 to repeal the Formosa Resolution of 1955. I was pleased to co-spon- 
sor both. In the next weeks, I shall introduce legislation to repeal the Middle East 
Resolution of 1957 and the Cuba Resolution of 1962. 

Today, I rise to present a Senate Concurrent Resolution aimed at terminating 
the state of national emergency proclaimed by President Truman in December, 
1950, in the depth of the Korean War. It is a sad paradox that this country h'as 
remained officially in a state of emergency since that time. Indeed, it may be 
useful at this point briefly to review how Congress — with barely a whimper — re- 
linquished important parts of its constitutional authority to the office of the 
President. 

On May 9, 1933, at a moment of dire Depression emergency, Franklin D. Roose- 
velt convened the Congress and demanded, in effect, that it revamp the Constitu- 
tion before midnight. The purpose of the reform was to make Congress — and the 
Constitution — optional at the discretion of the President, as the national interest 
required. 

The demand came as part of the Emergency Banking Act, an omnibus bill re- 
organizing the nation's then collapsing banking system and retroactively legitimiz- 
ing the President's Bank Holiday proclamation of three days before. Referred to 
the Banking and Currency Committee — with instructions that it be reported out 
in an hour — the bill was not printed and was not available for Senators to read. 
Senator Long complained that he did not know what was in it until it was read 
by the clerk. Most Senators indicated that they had grave reservations about 
what they understood to be the bill's provisions and Senator Long protested the 
extraordinary powers it granted to the President. But in the extremity of the 
crisis at hand, Congress felt it had to act immediately as the President demanded. 
The bill was passed by both Houses before midnight and the American constitu- 
tional Republic has been in its Damoclean shadow ever since. 

The key provision, not much remarked by the Congress at the time, came in an 
amendment, to section 5b of the Trading With the Enemy Act of 1917. As enacted 
in 1917, section 5b shifted from Congress to the President the power to regulate 
trade and financial transactions between Americans and foreigners in wartime. 
The 1933 amendment to 5b authorized the President — by the simple expedient of 
declaring a national emergency — to assume in peacetime these extensive wartime 
emergency powers. 

By declaring in the 1933 amendment that the President could assume emergency 
powers by declaration in peacetime, Congress established a principle with rever- 
berations going far beyond the legislation at hand. For the courts have interpreted 
the principle as creating a virtually unlimited Executive prerogative that now 
applies to some 200 laws granting special powers to the President during national 
emergencies. But neither Congress nor the courts has set criteria to define the 
kind of crisis which would justify invocation of these multifarious powers. Since 
1933 they have been available essentially as the President wishes. 

In accord with President Roosevelt's approach, the President is left to deter- 
mine by himself when a national emergency exists and when it ends — when the 
Executive should have access to the near dictatorial authority conveyed in emer- 
gency legislation. The President decides when he should share power with Con- 
gress as the Constitution prescribes, and when Congress can be made optional by 
proclamation. 

This assignment of emergency powers has worked very smoothly over the years. 
Since that dire extremity of 1933, there have been six Presidents — four Democrats 
and two Republicans. They have disagreed on many issues. But they have been 
unanimous on the question of when the country is in a state of national emer- 
gency and when the Congress, on a wide range of issues, is optional. Their answer, 
quite simply put — in a word — is : always. In the last 37 years, the country has 
passed through many vicissitudes of war and peace. But Presidential powers have 
been continuously "at war." Not once during that period has a President allowed 
his special powers to lapse. The result, described by Jeffrey G. Miller and John 



16 

R. Garson in an excellent article in the February, 1970, issue of the Boston College 
Industrial and Commercial Law Review, is that "some 60 percent of the nation's 
population have lived their entire lives under a continuous unbroken chain of 
national emergencies." 

A court did judicially acknowledge — in 1962 — that the Depression had ended. 
But no authority has yet recognized the end of the Korean emergency, proclaimed 
by President Truman on December 16, 1950, and still in effect today. Since the 
President declared with reference to Korea that "world conquest by communist 
imperialism is the goal of the forces of aggression," the State Department has 
interpreted the emergency as meaning the Cold War. 

This interpretation, however, has not limited the emergency powers to military 
matters affecting the protracted conflict with the Communists. The Korean au- 
thority, in fact, was most recently invoked in 1968 in relation to our economic 
competition with our European allies. President Johnson felt he would have diffi- 
culty securing from Congress the broad powers he needed to deal with the deficit 
which had been emerging for several years in the nation's balance of payments. 
Yet the Constitution clearly reserves to the Legislative branch all powers for reg- 
ulating foreign commerce. So the President invoked the emergency powers 
granted in 1950 in relation to the Korean War and signed Executive Order 11387, 
''Governing Certain Transfers Abroad." The Department of Commerce immedi- 
ately issued the Foreign Direct Investment Regulations (FDIR). The Executive 
Order and the FDIR restrict the amounts of capital that American investors may 
transfer to or accumulate in foreign affiliates and compel repatriation of short- 
term liquid balances such as foreign bank deposits. 

Without citation of the Korean AVar powers, these measures clearly represent 
an unconstitutional encroachment on legislative authority. The courts have up- 
held them, however, and they remain the law of the land. It is currently the law 
of the land, therefore ; that the state of national emergency proclaimed by Presi- 
dent Truman in 1950 in relation to the Korean conflict can be invoked in rela- 
tion to a balance of payments deficit 18 years later. Similarly, regulations against 
gold hoarding, activated by the Depression emergency, are continued under the 
1950 proclamation. Other measures invoked under section 5b pursuant to the 
Korean proclamation include the Foreign Assets Control Regulations, the Egyp- 
tian Assets Control Regulations, and the Cuban Assets Control Regulations. The 
Cuban trade embargo of 1962 was also based in part on the 1950 emergency. 

Among the nearly 200 other emergency laws are measures permitting the Pres- 
ident to sell stocks of strategic materials, revoke leases on real and personal 
property, suspend rules and regulations applicable to broadcasting stations, 
detain enlisted troops beyond the term of their enlistments, detail military 
men to the governments of other countries, and exercise control over consumer 
credit. Among hundreds of local properties available to the Executive, the 
President may take over parts of Howard University, and in my own state of 
Maryland, he may close Fort McHenry — the birthplace of the "Star Spangled 
Banner" — and "use it for such period thereafter as the public needs may require." 

These powers infringe on so many crucial constitutional rights and principles 
that collectively they may be seen as placing our system of democratic govern- 
ment in jeopardy. Certainly the deprivation of rights and property is author- 
ized without due process. But perhaps most important, these measures threaten 
the constitutional balance of powers between the Executive and Legislative 
branches. Because a state of official emergency has continued since 1933 — 
and has been upheld by the courts to validate actions unrelated to the original 
crisis — the national emergency powers have accumulated and become 
institutionalized in the Executive. The Presidency, already enhanced by modern 
trends, has been further aggrandized by the paradox of the continuous emer- 
gency. 

Unless we accept the principle of an optional Constitution and an optional 
Congress, we must reject the concept of national emergencies declarable by the 
President at his discretion in peacetime without termination dates. Since this 
concept has been upheld in essence by the Courts, it is up to the Congress to 
recover by legislation the constitutional role that it has allowed the Executive 
to usurp. We must reassert the principle that emergency powers are available 
only for brief periods when Congress is unable to act and for purposes directly 
related to the emergency at hand. 

This is easier said than done. We discover that the continuous and cumulative 
and institutionalized emergency is also almost irrevocable. So many Executive 



17 

agencies and procedures are rooted in emergency powers that it is extremely 
difficult to rescind them without major administrative disruptions. With this 
in mind, the distinguished Majority Leader, Mr. Mansfield, joined with me dur- 
ing the last session in S.J. Resolution 166, a resolution which, among other 
things, proposed the creation of a special committee to explore with the execu- 
tive the consequences of terminating the Korean Emergency. In the aftermath 
of the Cambodia incursion, however, our proposals were not acted upon. And 
so I am now reintroducing the resolution as a Senate Concurrent Resolution. 
It calls for the establishment of a commission to study and make recommenda- 
tions terminating the state of national emergency. 

It is to be expected that the commission's recommendations would, among other 
things, have the effect of restoring to Congress its full constitutional authority 
to regulate commerce, and would clearly define a national emergency. To- 
gether with S. 731. An Act to Regulate Undeclared War. which was introduced 
in February by the distinguished Senator from New York, Mr. Javits, this 
would serve to assure that emergency powers would only be applied for the 
duration of genuine emergencies. The Constitution did not envision a state of 
national emergency to be the normal state of affairs. 

Under the best of circumstances, the Congress will not find it easy to main- 
tain its historic constitutional role in the modern age. Modern communications, 
national interdependence, and international involvement coverage to enhance the 
Presidency ; real emergencies continually arise requiring the kind of decisive 
response the Executive is best equipped to give. But if the Congress allows 
these national Executive advantages to be expanded by special emergency pow- 
ers responding to unspecified emergencies without determination or limit, the 
balance of powers between the branches of our government may be irreparably 
broken. 

I believe that we do face today a national emergency — even a paradoxically 
continuous one. It emerged during the Depression and has been with us for 
several decades. It is a crisis that throws our whole system of constitutional 
government into jeopardy. This emergency — if I may use the term so loosely — 
is the atrophy of Congress. It is not an emergency which calls for the decisive 
exercise of Executive powers. It calls for the decisive recovery of legislative 
powers. 

Only Congress can redeem itself ; but in serving itself, it can also save the 
Constitution. And I believe that to save the Constitution is tx> save the most 
precious heritage of our country. 

S. Res. 304 

Whereas, the existence of the state of national emergency proclaimed by the 
President on December 16, 1950, is directly related to the conduct of United 
States foreign policy and our national security, now, therefore, be it 

Resolved. That (a) there is hereby established a special committee of the 
Senate to be known as the Special Committee on the Termination of the Na- 
tional Emergency (hereinafter referred to as the "Special Committee"). 

(b) The Special Committee shall be composed of eight Members of the Senate 
equally divided between the Majority and Minority parties to be appointed by the 
President of the Senate, four of whom shall be members of the Committee on 
Foreign Relations. 

(c) The Special Committee shall select a chairman and vice chairman from 
among its members. A majority of the members of the Special Committee shall 
constitute a quorum thereof for the transaction of business, except that the 
Special Committee may fix a lesser number as a quorum for the purpose of taking 
testimony. Vacancies in the membership of the Special Committee shall not affect 
the authority of the remaining members to execute the functions of the Special 
Committee. 

Sec. 2. (a) It shall be the function of the Special Committee to conduct a study 
and investigation with respect to the matter of terminating the national emer- 
gency proclaimed by the President of the United States on December 16. 1950. 
and announced in Presidential Proclamation Numbered 2914, dated the same 
date. In carrying out such study and investigation the Special Committee shall : 

(1) consult and confer with the President and his advisers ; 

(2) consider the problems which may arise as the result of terminating such 
national emergency ; and 



18 

(3) consider what administrative or legislative actions might be necessary 
or desirable as the result of terminating such national emergency, including con- 
sideration of the desirability and consequences of terminating special legislative 
powers that were conferred on the President and other officers, boards, and com- 
missions as the result of the President proclaiming a national emergency. 

Sec. 3. For the purposes of this resolution the Special Committee is authorized 
from date of agreement to this Resolution through February 28, 1973, in. its 
discretion (1) to make expenditures from the contingent fund of the Senate, 
(2) to employ personnel, (3) to hold such hearings, (4) to sit and act at such 
times and places during the sessions, recesses, and adjourned periods of the 
Senate, (5) to require by subpoena or otherwise the attendance of such witnesses 
and the production of such correspondence, books, papers, and documents, (6) 
to take such testimony, (7) to procure the services of individual consultants 
or organizations thereof, in accordance with the provisions of section 202(i) of 
the Legislative Reorganization Act of 1946, as amended, and (8) with the prior 
consent of the Government department or agency concerned and the Committee on 
Rules and Administration, to use on a reimburseable basis the services of person- 
nel of any such department or agency. 

Sec. 4. The expenses of the Special Committee under this resolution shall not 
exceed $100,000, of which amount not to exceed $15,000 shall be available for the 
procurement of the services of individual consultants, or organizations thereof 
as authorized by section 202 (i) of the Legislative Reorganization Act of 1946, as 
amended. 

Sec 5. The Special Committee shall report its findings, together with such 
recommendations for legislation as it deems advisable, to the Senate at the 
earliest practicable date, but not later than February 28, 1973. 

Sec. 6. Expenses of the Special Committee under this resolution shall be paid 
from the contingent fund of the Senate upon vouchers approved by the chairman 
of the Special Committee. 



19 



93d Congress ) SENATE ( Report 

2d Session f 1 No. 93-1170 



A RECOMMENDED NATIONAL EMERGENCIES ACT 



September 24, 1974. — Ordered to be printed 



Mr. Church, from the Special Committee on National Emergencies 
and Delegated Emergency Powers, submitted the following 

INTERIM REPORT 

By the Special Committee on National Emergencies and Dele- 
gated Emergency Pow t ers in Support of a Recommended Na- 
tional Emergencies Act 

The Special Senate Committee on National Emergencies and Dele- 
gated Emergency Powers, pursuant to Senate Resolution 304, June 23, 
1972, Senate Resolution 9, January 6, 1973, and Senate Resolution 242, 
January 23, 1974, submits herein an interim report in support of rec- 
ommended legislation : A National Emergencies Act (see attachment). 
Because of its critical importance, the Special Committee recommends 
that this legislation, approved unanimously by its eight members, be 
acted upon at the earliest opportunity. 

It is the Special Committee's view that legislative action is required 
because it is distressingly clear that our Constitutional government 
has been weakened by 41 consecutive years of emergency rule. There 
are now in effect four Presidential^ proclaimed states of national 
emergency which give the President the authority to rule the United 
States outside of normal Constitutional processes: The national 
emergency declared by President Roosevelt in March 1933 to fight 
the Great, Depression, the national emergency proclaimed by Presi- 
dent Truman in December 1950 during the Korean conflict, the 
national emergency declared by President Nixon, March 23, 1970 to 
handle the Post Office strike, and the August 15, 1971 national emer- 
gency proclaimed to meet balance of payments and other international 
economic problems. 

A majority of the American people have lived all their lives 
under emergency government. During this period of four decades, the 
President, through what is now over 170 legally delegated powers, has 



20 



had at hand the power to rule the United States outside of normal 
Constitutional processes. 

There is no longer any valid reason for emergency rule to continue. 
In the judgment of the Special Committee, our government would 
be strengthened by bringing to an end all declared states of national 
emergency presently in existence, and this should be done as soon as 
possible. 

The four proclamations of national emergency, together with the 
authority delegated by emergency powers statutes, have provided 
the President — any President — with extraordinary powers, among 
others, to seize property and commodities, organize and control the 
means of production, call to active duty 2.5 million reservists, assign 
military forces abroad, seize and control all means of transportation 
and communication, restrict travel, and institute martial law, and, in 
many other ways, manage every aspect of the lives of all American 
citizens. 

A few examples from the 470 emergency statutes now in force should 
make it clear what kinds of extraordinary discretionary power have 
been delegated to the President : 

Statute 10 USC 712 permits the President "during a war or a 
declared national emergency" to "detail members of the Army, 
Navy, Air Force, and Marine Corps to assist in military matters" 
in any foreign country. 

During the war in Southeast Asia and during +be Berlin air- 
lift on several other occasions, the Department of Defense used 
a little known law of more than 100 years' vintage. The Feed 
and Forage Act of 1861, 41 USC 11, to fund certain military 
activities not previously authorized bv the Congress. The original 
intent of the Feed and Forage Act was to enable the United 
States cavalry posted on the Western frontier to requisition feed 
for its horses and other supplies when Congress was out of session 
and thus unable to provide the necessary funds. This law was 
kept on the books and was used for deficiency spending for food, 
medicines, clothing and other similar supplies when Congress 
was not in ses e ion. In recent years this law has been used to spend 
funds not authorized by the express will of the Congress even 
when in session. 

Under 10 U.S.C. 333, the President can use the militia or armed 
forces to suppress "conspiracy," if it is likely that "any part" 
of the people in a state will be deprived of some constitutional 
right, and the stat^ itself refuses to act. Under this statute, the 
President conceivably could circumvent Article IV, Section 4, 
of the Constitution even before waiting for state legislatures or 
state executives to request Federal troops. 

Under 18 USC 1383, the President has authority to declare 
any part or all of the United States military zones. People in 
such zones can be iailed for a year for violating any "executive 
order of the President." Would these arrests be reviewable in 
court? Tt is not clear. Judicial review of agency actions is guar- 
anteed in 5 USC 702, but 5 USC 701 excludes actions taken under 
declarations of martial law. 



S.R. 1170 



21 



A President could make use of Public Law 733, which expresses 
the determination of the United States to prevent "by whatever 
means may be necessary including the use of arms," any "sub- 
versive" activities by the government of Cuba. 

Under 47 USC 308, the Federal Communications Commission 
could, during a national emergency, modify existing broadcast 
licenses under terms it might prescribe. 

Under 47 USC 606, the President can amend "as he sees fit" 
the rules and regulations of the Federal Communications Com- 
mission and, in particular, can "cause the closing of any facility 
or station for wire communications." 

If the President finds the nation "threatened by attack," he 
could, under 44 USC 1505, cease to publish his regulations in the 
Federal Register if he determines that it is "impracticable." This 
could open the Avay to promulgation of secret laws. 
At the present time, only a small portion of these 470 delegated 
emergency powers is being used. This is proof that there is no longer 
an '^emergency" that requires extraordinary delegations of power. In 
the view of the Special Committee, this body of potentially authori- 
tarian power remains a hazard to democratic government. Aggressive 
Presidents, permissive Congresses, and a long series of successive crises, 
have all contributed to the erosion of the structure of divided powers, 
the bedrock of our Constitutional system of government. 

The study undertaken by the Special Committee of how the four 
states of national emergency came into being, and how the over 470 
emergency statutes became the law of the land, provides a disturbing 
explanation of the deterioration of law-making during the past four 
decades. 

In the particular area of emergency powers statutes, the constitu- 
tionally prescribed roles of the Legislative and Executive branches 
have been reversed. The Special Committee's studies show that in far 
too many instances, the Executive branch itself drafted the laws and 
cast them in such form as to give itself maximum advantage. It is 
understandable that the Executive branch, in drafting laws granting 
power to itself, did not provide either for oversight or for termination 
by Congress. It is also not surprising that most of these laws were 
passed in times of crisis, when because of the urgency, Congress acted 
hastily without real scrutiny, without thorough hearings, and without 
the deliberation that such legislation should have demanded. For these 
reasons, Congress has not exercised its responsibilities prudently; it 
has not even reserved for itself the means to recoup its lost powers. 

Now, in a time of relative world peace, Congress has the opportunity 
to draw back and reexamine how profligately we have dealt with war 
and other emergencies. Our sobering experience with the undeclared 
Korean and Vietnam wars heightens the necessity to understand the 
means available within the Constitution, to meet crisis situations af- 
fecting our national security. 

The Special Committee has held extensive hearings seeking the 
views and advice of the country's most distinguished authorities on 
Constitutional government in time of crisis. In addition to scholarly 
authorities in the fields of political science and the law, the Special 



S.R. 1170 



22 



Committee sought the counsel of all the former Attorneys General and 
two former Supreme Court Justices, as well as many distinguished 
lawyers. On the basis of the suggestions and perspective gained from 
these hearings, and from two intensive staff studies of emergency 
power statutes and Executive Orders, and upon the basis of the data, 
advice and counsel supplied by the Executive branch, the Special 
Committee has drafted legislation which would provide : 

(1) For the termination of the present states of national 
emergency ; 

(2) For the establishment of a regularized procedure for the 
use of delegated emergency power in future emergencies. The 
President could declare a national emergency and in his public 
proclamation would cite the specific statutory powers he requires 
to meet the emergency. The Congress would have six months to 
act to affirm or reject. If Congress takes no action, the state of 
national emergency would lapse after six months. The Congress 
could extend any state of national emergency by affirmative vote. 
But no extension could last for more than six months without 
another affirmative vote by the Congress. 

(3) For a means of providing accountability for actions taken 
pursuant to emergency power statutes in any future emergency ; 
and 

(4) For a listing of those statutes which both the Executive 
branch and the respective standing committees of the Senate agree 
can be repealed because they are obsolete. 

The recommended legislation, entitled the "National Emergencies 
Act," would not come into effect until nine months after its date of 
enactment, in order to give Executive branch, agencies and Congres- 
sional Committees sufficient time to work out unresolved issues. It is 
clear that it may be necessary to cast into permanent form certain 
statutes which now are written in a form contingent upon the existence 
of a state of national emergency. The grace period would permit all 
such matters to be resolved through the normal legislative processes. 

The record of cooperation between the Legislative and Executive 
branch in working toward a legislative remedy, has been exemplary. 
Every department and agency of the Executive branch has coop- 
erated with requests from the Special Committee for information in 
their areas of jurisdiction. This cooperation, particularly on the part 
of the Department of Defense and the Department of Justice, under 
three Secretaries of Defense and four Attorneys General respectively, 
has been a model of how the two branches can work together. The 
Special Committee, for example, would still be laboring through 87 
volumes of the Statutes-at -Large to find out exactly what laws were 
involved, were it not for the assistance provided by the U.S. Air Force 
which had fortuitously put the L.S. Code into its LITE computer sys- 
tem located at a base in Colorado. The General Services Administra- 
tion and particularly the Federal Register of the National Archives, 
provided invaluable help in bringing substance and understanding 
into the shadowy world of Executive Orders issued pursuant to states 
of emergency. The Justice Department, largely through the counsel 
of Attorneys General themselves and the Office of Legal Counsel, has 



S.R. 



23 



given expert advice to the Special Committee, and we gratefully ac- 
knowledge the importance of their assistance. 

The Office of Management and Budget has helped the Special Com- 
mittee by providing a detailed evaluation of the current utility of 
emergency statutes now in force. It is upon the basis of the Executive 
branch's coordinated evaluation of these statutes and their evaluation 
by the standing committees that the Special Committee was able to 
draft a remedy in accord with the Constitutional responsibility of 
Congress to make laws. The Special Committee is confident that 
Congress should now proceed forthwith to end the four existing states 
of national emergency, repeal certain laws that both the Executive 
branch and Congress believe obsolete, and to legislate a definite proce- 
dure to be used in the event of future national emergencies. 

It has been an underlying premise of the Special Committee that 
the findings contained in the Youngstown Steel Case of 1952, particu- 
larly the opinion of Justice Jackson, provide sound and pertinent 
guidelines for the governance of emergency powers. Justice Jackson, 
supporting the majority opinion that the "President's power must 
stem either from an act of Congress or from the Constitution itself, 1 ' 
wrote : 

* * * emergency powers are consistent with free govern- 
ment only when their control is lodged elsewhere than in the 
Executive who exercises them. That is the safeguard that 
would be nullified by our adoption of the "inherent powers*' 
formula. Nothing in my experience convinces me that such 
risks are warranted by any real necessity, although such pow- 
ers would, of course, be an executive convenience. 

In the practical working of our Government we already 
have evolved a technique within the framework of the Con- 
stitution by which normal Executive powers may be consider- 
ably expanded to meet an emergency. Congress may and has 
granted extraordinary authorities which lie dormant in nor- 
mal times but may be called into play by the Executive in war 
or upon proclamation of a national emergency. * * * 

In view of the ease, expedition and safety with which Con- 
gress can grant and has granted large emergency powers, 
certainly ample to embrace this crisis, I am quite unimpressed 
with the argument that we should affirm possession of them 
without statute. Such power either has no beginning or it has 
no end. If it exists, it need submit to no legal restraint. I am 
not alarmed that it would plunge us straightway into dicta- 
torship, but it is at least a step in that wrong direction.* * * 

But I have no illusion that any decision by this Court can 
keep power in the hands of Congress if it is not wise and 
timely in meeting its problems. A crisis that challenges the 
President equally, or perhaps primarily, challenges Congress. 
If not good law, there was worldly wisdom in the maxim 
attributed to Napoleon that "The tools belong to the man who 
can use them." We may say that power to legislate for emer- 
gencies belongs in the hands of Congress, but only Congress 
itself can prevent power from slipping through its fingers. 



66-474 O - 76 - 3 S.R. 1170 



24 



With all its defects and inconveniences, men have discov- 
ered no technique for long preserving free government ex- 
cept that the Executive be under the laAv, and that the law be 
made by parliamentary deliberations. 

In our view. Congress should provide statutory guidelines to assure 
the full operation of Constitutional processes in time of war or emer- 
gency. This is the best prescription to avoid any future exercise of 
arbitrary authoritarian power. For as the Youngstown Case decided, 
where there is a statute, the Executive is obliged to use the statutory 
remedy; where there are no lawful statutory guidelines is to invite 
so-called inherent powers to come into play. There is without question 
a need, in the view of the Special Committee, to provide the Executive 
branch with an effective, workable method for dealing with future 
emergencies in accord with Constitutional processes. The Special Com- 
mittee has sought to do this in fulfillment of its mandate. 

The Special Committee, therefore, respectfully submits to the Senate, 
through the leadership, a legislative proposal with the recommenda- 
tion that it be acted upon as soon as possible. 

During the past year, the Special Committee requested the assist- 
ance of the Majority and Minority Leaders in the preparation of 
guidelines for procedural actions to be taken on the part of the Senate 
in possible future emergencies. The actions already taken by the lead- 
ership, in the view of the Special Committee, meet the needs that might 
reasonably be required by future emergencies. 

In order to assist the Senate in its consideration of the recommended 
legislation, the Special Committee urges members of the Senate to 
examine the following Special Committee documents which detail the 
many problems and dangers that emergencies pose to Constitutional 
government, the nature of the American experience, and the reasons 
for our recommended course of action. 

1. ''Emergency Powers Statutes : Provisions of Federal Law Now in 
Effect Delegating to the Executive Extraordinary Authority in Time 
of National Emergency v ; September 1973. This compilation of emer- 
gency powers delegated by statute to the President for use in times of 
war or national emergency contains a brief introduction to the history 
of emergency rule in the United States and the adverse effects that con- 
tinued emergency rule has upon Constitutional government. 

2. "Executive Orders in Times of War and National Emergency" ; 
June 1974. This compilation of Executive Orders issued pursuant to 
war or national emergency contains a brief historical review of how 
Presidents give orders to execute the law. The report documents the 
lack of legal accountability in many important areas of public policy 
for orders given by the President. This is an area that requires re- 
medial legislation. 

8. "Hearings: Part 1 — Constitutional Questions Concerning Emer- 
gency Powers"; April 11, 12, 197o. Testimony was taken from po- 
litical scientists Dr. Robert S. Rankin, Duke University: Professor 
Cornelius P. Cotter, University of Wisconsin; Professor J. Malcolm 
Smith, California State University; and legal scholars Dr. Adrian S. 
Fisher, Georgetown University Law Center and Dr. Gerhard Casper, 
University of Chicago. 



S.R. 1170 



25 



"Hearings : Part 2 — Views of Former Attorneys General" ; July 24, 
1973. Witnesses were Justice Tom C. Clark, Nicholas deB. Katzen- 
bach, and Ramsey Clark. 

"Hearings: Part 3 — Constitutional Questions Concerning Emer- 
gency Powers" ; November 28, 1973. Former Attorney General Elliot 
L. Richardson and former Solicitor General of the U.S. Erwin N. 
Griswold, testified. 

[Attachment] 

Recommended Legislation 

Approved Unanimously by the Special Committee July 11, 1974 

To terminate certain authorities with respect to national emergencies 
still in effect, and to provide for orderly implementation and termi- 
nation of future national emergencies 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act may 
be cited as the "National Emergencies Act." 

TITLE I— TERMINATING EXISTING DECLARED 
EMERGENCIES 

TERMINATING powers and authorities 

Sec. 101. (a) All powers and authorities conferred by law upon the 
President, any other officer or employer of the Federal Government, 
or upon any department, agency, independent establishment, or any 
other body of the Federal Government, and all powers and author- 
ities conferred by any Executive order pursuant to law as a result 
of the existence of any national emergency in effect immediately prior 
to the two hundred and seventy-first day after the date of enactment 
of this Act, are terminated on such two hundred and seventy-first day. 

(b) For the purpose of this section, the words "any national emer- 
gency in effect" mean a general declaration of emergency made by the 
President pursuant to a statute authorizing him to declare a national 
emergency. 

TITLE II— FUTURE NATIONAL EMERGENCIES 

Sec. 201. (a) In the event the President finds that the proclamation 
of a national emergency is essential to the preservation, protection, 
and defense of the Constitution, and is essential to the common de- 
fense, safety, or well-being of the territory and people of the United 
States, the President is authorized to proclaim the existence of a na- 
tional emergency. Such proclamation shall thereupon be made public, 
and shall be published immediately in the Federal Register. 

(b) Any provisions of law conferring powers and authorities to be 
exercised during a national emergency shall be effective and remain 
in effect with respect to national emergency (1) only when the Presi- 
dent (in accordance with subsection (a) of this section), specifically 



S.R. 1170 



26 



8 

declares a national emergency, and (2) only in accordance with this 
Act, No law enacted after the date of enactment of this Act shall 
supersede this title unless it does so in specific terms, referring to this 
title, and declaring that the new law supersedes the provisions of this 
title. 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec. 301. "Whenever Congress declares war, any provisions of law 
conferring powers and authorities to be exercised during time of war 
or a national emergency shall be effective from the date of such dec- 
laration and remain in effect only in accordance with the provision of 
Title IV of this Act. 

TITLE IV— FUTURE NATIONAL EMERGENCIES 

EXERCISING EMERGENCY POWERS AND AUTHORITIES 

Sec. 401. (a) When the President declares a national emergency, or 
Congress declares war, any provisions of law conferring powers and 
authorities to be exercised during such a national emergency or during 
a war declared by the Congress shall be effective and remain in effect 
with respect to such emergency or war only in accordance with this 
Act. 

(b) When the President declares a national emergency, no powers 
made available by statute for use in the event of an emergency shall 
become operative unless and until the President specifies by Executive 
order the specific provisions of law under which he proposed that he, 
or other officers of the Executive branch, will act. Such specification 
may be made either in the original declaration of a national emergency, 
or by subsequent order, but no power granted in the event of the 
declaration of a national emergency shall be available unless or until 
it has been so specified by the President. All such specifications shall 
be published immediately in the Federal Register, and a copy of any 
declaration of national emergency, and of such specifications, shall be 
transmitted immediately to Congress. 

LIMITATIONS ON NATIONAL EMERGENCIES DECLARED BY PRESIDENT 

Sec 402. Any national emergency declared by the President in ac- 
cordance with this title shall terminate at the end of the one hundred 
and eightieth day after the date the national emergency was declared, 
and any of the provisions of law referred to in section 101(a) of this 
Act shall not be effective after the end of such one hundred and 
eightieth day unless Congress by concurrent resolution — 

( 1 ) terminates such emergency on an earlier date ; or 

(2) continues such emergency to a day specified in the concur- 
rent resolution, beyond the end of such one hundred and eightieth 
day. 



S.R. 1170 



27 



Any national emergency declared by the President shall then be 
terminated on the date specified in any such concurrent resolution 
ref erred to in clauses (1) and (2) of this section, and any such pro- 
visions of law shall not be effective after such specified date with re- 
spect to that emergency. 

TERMINATING AND CONTINUING NATIONAL EMERGENCIES AND WARS 

Sec. 403. (a) In no event shall any provision of law referred to in 
section 401(a) of this Act remain in effect beyond the end of the 
one hundred and eightieth day following the date of the declaration 
of the emergency or war unless, in the case of a declaration of war 
by Congress, if such declared war has not been terminated in accord- 
ance with Constitutional processes. 

(b) The provisions of sections 401 and 40-2 of this Act and sub- 
section (a) of this section shall apply to any subsequent declaration 
of a national emergency or war made with respect to the same emer- 
gency or war under subsection (a ) of this section. 

TITLE V— MISCELLANEOUS 

ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE PRESIDENT 

Sec. 501. (a) When the President declares a national emergency, 
or Congress declares war, the President shall be responsible for main- 
taining a file, and an index thereof, of all Executive orders by the 
President, including all instances of the exercise by the President 
of any power conferred on him by statutes and the Constitution; all 
rules and regulations, by whatever name called, promulgated by any 
Executiye department, administration, independent establishment, 
board, commission, official, group of officials, or other rulemaking 
authority: and all other rules, regulations, orders, by whatever name 
called, made directly or indirectly under the expressed or implied au- 
thority of the Constitution or any Act of Congress with respect to 
the declarations of national emergency or war. The President shall 
transmit to the House of Representatives and the Senate and to the 
appropriate committees of the Congress the texts of each order, rule, 
or regulation, by whatever name called, promulgated by any Execu- 
tive department, administration, independent establishment, board, 
commission, official, group of officials, or other rulemaking authority; 
and all other orders, rules, and regulations, by whatever name called, 
made directly or indirectly under expressed or implied authority of 
the Constitution or any Act of Congress with respect to the declara- 
tion of national emergency or war, as soon as practicable after that 
order, by whatever named called, has been issued. 

(b) Any such order, rule, or regulation which conforms with pro- 
cedures established by law, shall be transmitted to the House of 
Representatives and the Senate and to the appropriate committees of 
Congress under means to assure its proper confidentiality. 



S.R. 1170 



28 



10 



TITLE VI— REPEAL OF CERTAIN EMERGENCY 
POWER STATUTES 

Sec. 601. Except with respect to the rights and duties that matured, 
penalties that were incurred, and proceedings that were begun, prior 
to the date of enactment of this Act, the following provisions of law 
are repealed: 



7U.S.C. 1741) 
7 U.S.C. 1742) 
7 U.S.C. 1743) 
7 U.S.C. 1744) 
7 U.S.C. 1745) 
7 U.S.C. 1746) 

7 U.S.C. 1747) 

8 U.S.C. 1481 (a) (10)) 
10 U.S.C. 2667(b)(4)) 
10 U.S.C. 4025) 

10 U.S.C. 9025) 
12 U.S.C. 95) 
12 U.S.C. 95(a)) 
12 U.S.C. 249) 
12 U.S.C. 1703) 
12 U.S.C. 1705) 
12 U.S.C. 1748b (a)) 
16 U.S.C. 831d(m)) 
18 U.S.C. 1383) 
26 U.S.C. 168) 
41 U.S.C. 101) 
41 U.S.C. 102) 
41 U.S.C. 103) 
41 U.S.C. 104) 
41 U.S.C. 105) 



41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 
41 U.S.C. 

41 U.S.C. 

42 U.S.C. 
42 U.S.C. 
50 U.S.C. 
50 U.S.C. 



106) 

107) 

108) 

109) 

110) 

111) 

112) 

113) 

114) 

115) 

116) 

117) 

118) 

119) 

120) 

121) 

122) 

123) 

124) 

125) 

211b) 

1592) 

9(e)) 

App. 1742) 



S.R. 1170 



29 



94th Congress \ c^mat^ / Report 

2d Session / bJ^NAiJi, < Na 94 _ 92 2 



NATIONAL EMERGENCIES AND 
DELEGATED EMERGENCY POWERS 



FINAL REPORT 

OF THE 

SPECIAL COMMITTEE ON NATIONAL 

EMERGENCIES AND DELEGATED 

EMERGENCY POWERS 




Mat 28, 1976.— Ordered to be printed 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1976 



30 



SPECIAL COMMITTEE ON NATIONAL EMERGENCIES AND 
DELEGATED EMERGENCY POWERS 

FRANK CHURCH, Idaho, Cochairman 
CHARLES McC. MATHIAS, Jr., Maryland, Cochairman 
PHILIP A. HART, Michigan CLIFFORD P. CASE, New Jersey 

CLAIBORNE PELL, Rhode Island JAMES B. PEARSON, Kansas 

ADLAI E. STEVENSON III, Illinois CLIFFORD P. HANSEN, Wyoming 

Jerry M. Brady, Staff Director 
William K. Sawyer, Projeasional Staff 
Gayle D. Fitzpatrick, Chief Clerk 

(ID 



31 



CONTENTS 



Page 

Preface v 

Introduction 1 

History of the special committee 1 

Committee's findings 3 

Two tasks for the committee 4 

Hearings 4 

Publications on emergency powers 5 

Other publications 6 

Court guidance 6 

Legislative history 8 

Work remaining 10 

Issues related to the National Emergencies Act 10 

Need for an investigation of emergency preparedness efforts conducted 

by the executive branch 11 

Need for congressional preparations for an emergency and continual 

review of emergency law 11 

Ending open-ended grants of authority to the Executive 12 

Investigating and instituting stricter controls over delegated powers 14 

Improving the accountability of Executive decisionmaking 16 

Conclusion 18 

Appendixes 21 

List of publications 21 

Errata section 22 

Letter to Senator Abraham Ribicoff concerning sourcebook 22 

Staff report on emergency preparedness in the United States 25 

(HI) 



32 



PREFACE 

With this Final Report, the Special Committee on National Emer- 
gencies and Delegated Emergency Powers (formerly the Special Com- 
mittee on the Termination of the National Emergency) concludes its 
three year existence. The Committee regrets that legislative delay has 
made it necessary to submit this document before final passage of the 
National Emergencies Act. Only when that legislation has been 
enacted into law will the work of the Committee truly be finished. 

We would like to take this opportunity to thank Senators Philip A. 
Hart, Claiborne Pell, Adlai E. Stevenson III, Clifford P. Case, James 
B. Pearson, and Clifford P. Hansen for the spirit of cooperation and 
non-partisanship which has made the work of the Committee so 
successful. 

We would also like to express our gratitude to the many other people 
who have helped the Committee complete its work. In particular, we 
wish to thank the following people for their valuable assistance : Lester 
S. Jayson, the director of the Congressional Research Service of the 
Library of Congress; Joseph E. Ross, head of the American Law 
Division of CRS; and especially Raymond Celada of the American 
Law Division and his able assistant, Charles V. Dale and Grover S. 
Williams; Jack Goldklang of the Office of Legal Counsel, Department 
of Justice; Paul Armstrong of the General Accounting Office, and 
Linda Lee, research aide. Dr. Harold Relyea of the Library of Con- 
gress continually provided valuable assistance in addition to writing 
an informative and useful history of American government in times 
of emergency. 

We wish to commend Staff Directors William G. Miller and Jerry 
M. Brady for their leadership and the other staff members for their 
diligence in completing the work of the Committee. Over the three- 
year period, the staff included : Thomas A. Dine, Audrey H. Hatry, 
Martha E. Mecham, Roland B. Moore, III, Patrick M. Norton, Wil- 
liam K. Sawyer, Patrick A. Shea, Naldeen McDonald, Yvonne McCoy, 
and Gayle D. Fitzpatrick. 

Finally, we would like to give credit to the staff members responsible 
for this Final Report and the report on emergency preparedness which 
is included in the Appendix. We thank William K. Sawyer for writing 
these reports, Jerry M. Brady for editing them, and Gayle D. Fitz- 
patrick for administrative support. 

Frank Church, 

Charles McC. Mathias, Jr., 

Cochairmen. 

(V) 



33 



INTRODUCTION 

The Special Committee on National Emergencies and Delegated 
Emergency Powers ends its work with an emphatic plea that the 
National Emergencies Act, H.R. 3884, be passed as soon as possible. 
The legislation, which represents the culmination of three years of 
work by the Committee, will both terminate special powers possessed 
by the President as a result of existing states of national emergency 
and establish procedural guidelines for the handling of future emer- 
gencies with provision for regular Congressional review. The bill 
should end the disarry that has characterized emergency laws and 
procedures in the United States. 

The legislation is long overdue. A majority of Americans alive 
today have lived their entire lives under emergency rule. Since 1933. 
protections and procedures guaranteed by the Constitution have, in 
varying degrees, been abridged by Executive directives whose legality 
rests on the continued existence of Presidentially proclaimed states of 
emergency. For more than forty years, emergency authority intended 
for use in crisis situations has been available to the Executive. The 
President has had extraordinary powers — powers to seize property 
and commodities, seize control of transportation and communications, 
organize and control the means of production, assign military forces 
abroad, and restrict travel. 

This dangerous state of affaire is a direct result of Congress' fail- 
ure to establish effective means for the handling of emergencies and 
its willingness to defer to Executive branch leadership. In the face 
of the wars, emergencies, and crises and determined Presidents of the 
past forty years, the Congress, through its own actions has transferred 
awesome magnitudes of power to the Executive without ever examin- 
ing the cumulative effect of that delegation of responsibility. It has 
tolerated and condoned Executive initiatives without fulfilling its own 
constitutional responsibilities. It has in important respects permitted 
the Executive branch to draft and in large measure to make the law. 
This has occurred despite the constitutional responsibility conferred 
on Congress by Article I. Section 8 of the Constitution which states 
that it is Congress that "makes all Laws. . . ." 

Passage of the National Emergencies Act will be a major step 
toAvard restoring Congress to its proper legislative role. The legislation 
represents significant progress in checking the growth of Executive 
power and returning the United States to normal peacetime processes. 
The measure is vital in insuring that the United States travels a road 
marked by legislative oversight and carefully constructed legal safe- 
guards. 

History of the Special Committee 

Interest in the question of emergencv powers stems from the United 
States' experience in the Viet Nam War and the incursion into Cam- 

(1) 



34 



bodia. The President's ability to commit Americans to warfare with- 
out any Congressional declaration of a state of war disturbed many 
Senators. 

In 1971 Senator Charles McC. Mathias, Jr. of Maryland submitted 
Senate Concurrent Resolution 27 to establish a special joint com- 
mittee to study the effect of terminating the only emergency known 
to be in existence at the time, that declared by President Truman in 
1950 during the Korean War. On May 23, 1972, Senator Mathias and 
Senator Frank Church of Idaho introduced Senate Resolution 304, 
which called for the creation of the Senate Special Committee on the 
Termination of the National Emergency. The Senate Foreign Rela- 
tions Committee, after hearings and executive comments, reported the 
resolution favorable on June 13, 1972. The bill subsequently passed 
the Senate, and on September 18, 1972, an equal number of majority 
and minority party members were appointed to the newly- formed 
Special Committee. Senators Church and Mathias became co-chairmen, 
and Senators Hart, Pell, Stevenson, Case, Pearson, and Hansen were 
also appointed. 

On January 6, 1973, the Special Committee began its work under 
the authority of S. Res. 9 and the 93rd Congress. The mandate of the 
Committee was : 

to conduct a study and investigation with respect to the mat- 
' ter of terminating the national emergency proclaimed by the 
President of the United States on December 16, 1950, as an- ' 
nounced in Presidential Proclamation Numbered 2914, dated 
the same date. 

In conducting its study, the Committee was to : 

(1) consult and confer with the President and his advisers; 

(2) consider the problems which may arise as the result of 
' terminating such national emergency ; and 

(3) consider what administrative or legislative actions might 
be necessary or desirable as the result of terminating such na- 
tional emergency, including consideration of the desirability and 
consequences of terminating special legislative powers that were 
conferred on the President and other officers, boards, and com- 
missions as the result of the President proclaiming a national 
emergency. 

From the start, the work of the Committee was marked by non- 
partisanship and its efforts facilitated by the cooperation of the 
Executive branch. The Committee staff met with Attorney General 
Kleindienst as early as January 17, 1973, and enlisted the help of the 
Department of Justice. A special task force was established in the 
White House to look into the question of emergency powers. 

Executive cooperation was important because of the rudimentary 
state of knowledge of emergency laws and procedures at that time. 
The Special Committee knew that the Truman Korean War Emer- 
gency was still in existence and that at least 200 special powers had 
accrued to the President over the years. The investigators knew that 
President Johnson had used emergency powers in January, 1968, 
to control American investments abroad in an effort to ease that year's 
balance-of- payments crisis, and that President Nixon had invoked 
the same authority in February, 1971, to suspend the provisions of the 



35 



Davis-Bacon Act. Yet. the Special Committee did not know the full 
story. 

Committers Findings 

The Committee quickly discovered that disorder enveloped the 
whole field of emergency statutes and procedures. Xot one but four 
emergency proclamations remained in force. In addition to the na- 
tional emergency proclaimed by President Truman on December 16, 
1950, the following- declarations of emergency remained in force : 

the national emergency declared by Franklin Eoosevelt on 
March 9, 1933. to cope with the current banking crisis; 

the national emergencv declared by Richard Nixon on 
March 23. 1970, to deal with the Post Office strike ; 

the national emergency declared by Richard Xixon on 
August 15, 1971, to implement currency restrictions and to en- 
force controls on foreign trade. 

The continuation of these states of emergency was significant, since 
any declaration of emergency triggers numerous laws which, taken 
together, give the President extraordinary power. The following laws 
are illustrative : 

Statute 10 USC 712 permits the President "during a war 
or a declared national emergency" to ''detail members of the 
Army. Navy, Air Force, and Marine Corps to assist in mili- 
tary matters" in any foreign country. 

Under 10 USC 333, the President can use the militia or 
armed forces to suppress "conspiracy," if it is likely that "any 
part" of the people in a state will be deprived of some consti- 
tutional rights, and the state itself refuses to act. Under this 
statute, the President conceivably could circumvent Article 
IV. Section 4, of the Constitution even before waiting for 
state legislatures or state executives to request Federal troops. 

Under IS USC 1383. the President has authority to declare 
any part or all of the United States military zones. People in 
such zones can be jailed for a year for violating any "execu- 
tive order of the President." Would these arrests be review- 
able in court \ It is not clear. Judicial review of agency ac- 
tions is guaranteed in 5 USC 702, but 5 USC 701 excludes ac- 
tions taken under declarations of martial law. 

A President could make use of Public Law 733, which ex- 
presses the determination of the United States to prevent "by 
whatever means may be necessary including the use of arms,*' 
any "subversive" activities by the government of Cuba. 

Under 47 USC 308, the Federal Communications Commis- 
sion could, during a national emergency, modify existing 
broadcast licenses under terms it might prescribe'. 

Under 47 USC 606, the President can amend "as he sees 
fit" the rules and regulations of the Federal Communications 
Commission and, in particular, can "cause the closing of any 
facility or station for wire communications." 

If the President finds the nation "threatened by attack," 
he could, under 44 USC 1505, cease to publish his regulations 
in the Federal Register if he determines that it is "imprac- 

S. Rept. 94-922 2 



36 



ticable." This could open the way to promulgation of secret 
laws. 

Moreover, no recent comprehensive record of statutes effective dur- 
ing times of emergency had been compiled. No consistent procedure 
was being followed in declaring, administering, and terminating states 
of national emergency. The enlarged task that the Committee con- 
fronted led to its being redesignated the Special Committee on Na- 
tional Emergencies and Delegated Emergency Powers. 

Two Tasks for the Committee 

The Special Committee worked on two main tasks. The first was to 
explore how existing states of national emergency could be terminated 
with the least adverse effects. There were three possible approaches: 
(a) outright repeal of all emergency statutes, (b) relegating all emer- 
gency provisions to a state of dormancy to be used in future emer- 
gencies, or (c) maintaining emergency provisions in the United States 
Code but for use only in states of emergency declared in accordance 
with regular and consistent procedures which would provide for ter- 
mination and oversight. 

The second task was to explore the possibility of establishing a pro- 
cedure for declaring states of national emergency. The procedure 
would require accountability for actions taken by the Executive pur- 
suant to delegated emergency authorities in order to permit the Con- 
gress to effectively exercise its oversight responsibilities. 

Hearings 

Concurrent with the historical research undertaken by the staff of 
the Special Committee, the Library of Congress and distinguished con- 
sultants, hearings were held on the history of emergency rule in the 
United States and constitutional problems created by such rule. 

Professor Robert S. Rankin, Emeritus, of Duke University, Pro- 
fessor Cornelius P. Cotter of the University of Wisconsin, and Pro- 
fessor J. Malcolm Smith of California State University, all renowned 
scholars of the subject of emergency powers, testified in hearings held 
by the Special Committee on April 11, 1973. 

Professor Adrian S. Fisher, Dean of the Georgetown University 
Law Center, and Dr. Gerhard Casper, Professor of Law and Political 
Science at the University of Chicago, testified on April 12, 1973. Pro- 
fessor Fisher served as an advisor to President Harry S. Truman in 
1950 and described to the Committee the circumstances surrounding 
Truman's declaration of national emergency in that year. Professor 
Casper testified on the constitutional questions raised by Executive 
use of emergency powers. 

The Committee also heard from officials formerly associated with 
the Justice Department and Supreme Court including the late Chief 
Justice Earl Warren. Former Attorney General of the United States 
and Associate Justice of the U.S. Supreme Court Tom C. Clark, for- 
mer Attorney General Nicholas DeB. Katzenbach, and former Attor- 
ney General Ramsey Clark testified on July 24, 1973. Later, on Novem- 
ber 28, 1973, former Attorney General Elliott Richardson and former 
Solicitor General Erwin Griswold presented their views to the Special 
Committee. 

Throughout its work the Special Committee has had the benefit of 
the full cooperation and assistance of the Justice Department, under 



37 



5 



four successive Attorneys General — Kleindienst, Richardson, Saxbe, 
and Levi — as well as the Department of Defense and the Office of 
Management and Budget. 
Publications on Emergency Powers 

To improve understanding of emergency laws and procedures and 
provide the basis for legislation, the Special Committee published a 
number of studies, reports, and compilations. The first was a com- 
pilation of "Emergency Power Statutes: Provisions of Federal Law 
Now in Effect Delegating to the Executive Extraordinary Authority 
in Time of National Emergency." The story of how this document 
was composed illustrates the size of the task the Committee faced and 
the cooperation it received from the Executive branch. 

In the past, the only way to compile a catalog useful to Congress 
would have required going through every page of the 86 volumes of 
the StatuteS-at-Large. Fortunately, the U.S. Code was put into com- 
puter tapes by the U.S. Air Force in the so-called LITE system^which 
is located at a military facility in the State of Colorado. The Special 
Committee devised several programs for computer searches based on 
a wide spectrum of key words and phrases contained in typical provi- 
sions of law which delegate extraordinary powers. Examples of some 
trigger words are "national emergency," "war," "national defense," 
"invasion," "insurrection," et cetera. 

These programs resulted in several thousand citations. At this point, 
the Special Committee and Library of Congress staffs went through 
the printouts, separating out those provisions of the U.S. Code most 
relevant to war or national emergency, and weeding out those provi- 
sions of a trivial or extremely remote nature. Two separate teams 
worked on the computer printouts and the results were put together in 
a third basic list of U.S. Code citations. 

To determine legislative intent, the U.S. Code citations were then 
hand checked against the Statutes-at-Large, the Reports of Standing 
Committees of the L T .S. Senate and House of Representatives and, 
where applicable. Reports of Senate and House Conferences. 

In addition, the laws passed since the publishing of the 1970 Code 
were checked and relevant citations were added to the master list. The 
compilation was then checked against existing official catalogs: that 
of the Department of Defense. "Digest of War and Emergency Legis- 
lation Affecting the Department of Defense"; that of the Office of 
Emergencv Planning. "Guide to the Emergency Powers Conferred by 
Laws in Effect on January 1, 1969"; and, the 1962 House Judiciary 
Committee synopsis of emergency powers, "Provisions of Federal 
Law in Effect in Time of National Emergency." The result was a com- 
pilation and commentary on 470 special statutes invokable by the 
President during a time of declared national emergency. 

Once the Special Committee had completed its compilation of emer- 
gency statutes, the staff, assisted by the Office of Management and 
Budget, solicited evaluation of the existing statutes from Executive 
departments, agencies, nnd office- and from Standing Committees of 
the Senate. "Executive Replies: Summaries of the Executive Branch 
and Committee Recommendations" was then issued as a committee 
print in three parts. 



38 

6 

Other Publications 

The Special Committee also composed a study of "Executive Orders 
in Time of War and National Emergency." This compilation brought 
together as complete a collection as possible of Executive Orders and 
Proclamations issued pursuant to states of war and national emer- 
gency. The collection was based on an examination of Proclamations 
and Executive Orders found at the Library of Congress and the 
Federal Register. The report documents the lack of legal accountabil- 
ity in many important areas of public policy for orders given by the 
President. 

In addition, "A Brief History of Emergency Powers in the United 
States" was issued as a commitee print. When the Special Committee 
began its work, there was no basic study outlining the use of emer- 
gency powers in the United States from the time of the Philadelphia 
Constitutional Convention to the present. To fill the gap, the Com- 
mittee asked Dr. Harold Relyea of the Library of Congress to write 
a chronological history of the American government in times of 
crisis. His study highlights the great crises of American history 
and the manner in which the three branches of the Federal Govern- 
ment have met particular emergency situations. Especially significant 
are the experiences and legacies of Shay's Rebellion, the Civil War, 
labor strikes of the late 19th Century, and both World Wars. 

Court Guidance 

Throughout its work the Special Committee has paid close attention 
to court decisions. The Committee was particularly guided by the 
famous Youngstown Steel and Tube Company v. Sawyer decision, 
in which the Supreme Court failed to uphold an attempt by President 
Truman to seize control of the striking steel industry. Speaking for 
the majority, Justice Black held that "the President's power, if any, 
to issue the order must stem from an Act of Congress or from the 
Constitution itself." He characterized President Truman's action as 
-an unconstitutional arrogation of "law-making power" by the 
.Executive. 

Justice Jackson's widely quoted and praised concurring opinion 
stressed that our system of government is a "balanced power struc- 
ture" and pointed out that Executive power to act is a variable 
-depending upon the collective will of Congress for its authority. 
-Justice Jackson listed three situations which determine the extent of 
i the Presidents power : 

1. When the President acts pursuant to an express or 
implied authorization of Congress, his authority is at its 
maximum, for it includes all that he possesses in his own right 
plus all that Congress can delegate. . 

2. When the President acts in absence of either a Congres- 
sional grant or denial of authority, he can only rely upon his 
nowii independent powers. 

3. When the President takes measures incompatible with the 
-expressed or implied will of Congress, his power is at its 
lowest ebb, for then he can rely only upon his own constitu- 
tional powers minus any constitutional powers of Congress. J 
over the matter. \ 



39 



Justice Jackson continued : 

The appeal, however, that we declare the existence of in- 
herent powers ex necessitate to meet an emergency asks us to 
do what many think would be wise, although it is something 
the forefathers omitted. They knew what emergencies were, 
knew the pressures they engenered for authoritative action, 
knew, too, how they afford a ready pretext for usurpation. 
We may also suspect that they suspected that emergency 
powers would tend to kindle emergencies. Aside from suspen- 
sion of the privilege of the writ of habeas corpus in time of 
rebellion or invasion, when the public safety may require it, 
they made no express provision for exercise of extraordinary 
authority because of a crisis. I do not think we rightfully 
may so amend their work, and, if we could, I am not convinced 
it would be wise to do so, although many modern nations 
have forthrightly recognized that war and economic crisis 
may upset the normal balance between liberty and authoritj T . 
Their experience with emergency powers may not be irrele- 
vant to the argument here that we should say that the Exe- 
cutive, of his own volition, can invest himself with undefined 
emergency powers. 

After recalling the experience of Germany, where the Constitution 
had permitted the President to suspend individual rights, and Great 
Britain and France, where the parliaments had maintained strict 
control over emergency powers, Justice Jackson concluded: 

This contemporary foreign experience may be inconclusive 
as to the wisdom of lodging emergency powers somewhere in 
a modern government. But it suggests that emergency 
powers are consistent with free government only when their 
control is lodged elsewhere than in the Executive who exer- 
cises them. That is the safeguard that would be nullified by 
our adoption of the "inherent powers" formula. Nothing in 
my experience convinces me that such risks are warranted by 
any real necessity, although such powers would, of course, be 
an Executive convenience. 

In the practical working of our Government we already 
have evolved a technique within the framework of the Con- 
stitution by which normal Executive powers may be con- 
siderably expanded to. meet an emergency. Congress may 
and has granted extraordinary authorities which lie dor- 
mant in normal times but may be called into play by the 
Executive in war or upon proclamation of a national emer- 
gency. In 1939, upon Congressional request, the Attorney 
General listed ninety-nine such separate statutory grants by 
Congress of emergency or wartime Executive powers. They 
were invoked from time to time as need appeared. Under this 
procedure we retain government by law — special, temporary 
law, perhaps, but law nonetheless. The public may know the 
extent and limitations of the powers that can be asserted, 
and persons affected may be informed from the statute of 
their rights and duties. 



66-474 O - 76 



40 



8 



In view of the case, expedition and safety with which 
Congress can grant and has granted large emergency 
powers, certainly ample to embrace this crisis, I am quite un- 
impressed with the argument that Ave should affirm posses- 
sion of them without statute. Such power either has no be- 
ginning or it has no end. I,f it exists, it need submit to no 
legal restraint. I am not alarmed that it would plunge us 
straightway into dictatorship, but it is at least a step in that 
wrong direction. 

The Special Committee accepted Jackson's opinion as a basic guide- 
line for its work. The continuing importance of the opinion is illus- 
trated by the reference made to it in counsel given to the Special 
Committee by the late Chief Justice Earl Warren just prior to his 
death. Senator Mathias reported the details of that conversation to 
the Senate on August 22, 1974: 

Chief Justice Warren said that while the Constitution pro- 
vides that only Congress can make the law, the legislature 
had the obligation through enacting statutes to provide firm 
policy guidelines for the Executive branch. The former 
Chief Justice agreed with Justice Jackson's view that where 
there are statutory guidelines, a President is obliged to fol- 
low the precepts contained in the laws passed by the Con- 
gress. Inherent powers problems arise and the other branches 
act, he said, largely when Congress fails to act definitely, 
when it fails to make needed laws and when there is a neces- 
sity for legislative action and Congress fails to meet the 
challenge. 

Legislative History 

Upon the basis of all its findings, the Special Committee decided 
to write legislation which would both effectively end the four states of 
national emergency found to be in force and establish procedures for 
the handling of any future national emergency. The resulting bill, 
the National Emergenceis Act, has received broad bipartisan support 
and elicited a rare degree of cooperation between the Executive and 
Legislative branches of government . 

A quick review of the legislative history is instructive. The Com- 
mittee first submitted the National Emergencies Act to the Senate 
on August 22, 1974. The bill, S. 3957, was sponsored by Senators 
Church, Mathias, Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin, 
Chiles, Williams, Muskie, Javits, Ribicoff, and Roth. The legislation 
provided for : 

CL Termination of powers and authorities available to the 
Executive as a result of the states of national emergency in force. 

2. Congressional review of future national emergencies. 

3. Congressional oversight of and Executive accountability for 
actions taken in the exercise of emergency powers. 

4. Repeal of obsolete emergency powers statutes. 

The Senate Committee on Government Operations, to which the bill 
was referred, reported it without amendment on September 30, 1974 
(S. Rept. 93-1193). On October 7 on the floor of the Senate, Senator 
Mathias offered amendments incorporating compromises agreed to by 



41 



y 



the Government Operations Committee and the Administration. The 
amendments provided for : 

1. Extension of the termination date for existing emergencies 
from nine to twelve months from enactment ; 

2. A semi-annual review and decision by Congress on whether 
to end an emergency, rather than automatic termination of states 
of emergency ; 

3. Reduction of the number of statutes to be repealed; 

4. Exemption of six statutes considered essential by the Execu- 
tive branch and provision for their review by appropriate Con- 
gressional committees ; 

5. Requirements for an accounting of expenditures incurred 
in the exercise of national emergency statutes. 

The amended legislation passed the Senate without dissent on Oc- 
tober 7, 1974. 

Senate bill, S. 3957. then went to the House of Representatives, but 
the House Judiciary Committee, to which the legislation was referred, 
was unable to act on the bill in 1974. Representative Peter Rodino, the 
Committee' Chairman, had intended to hold early hearings on the 
legislation; however, the impeachment inquiry and confirmation of 
Vice President Rockefeller prevented consideration during the 93rd 
Congress, and the bill consequently died. 

Early in the 94th Congress, on February 27, 1975, Chairman Rodino 
introduced H.R. 3884 and on March 6, 1975, Senator Mathias intro- 
duced S. 977. The bills were identical and, with the exception of two 
minor technical amendments, the same as the measure already passed 
by the Senate. 

The House Judiciary Subcommittee on Administrative Law and 
Governmental Relations, chaired by Representative Walter Flowers, 
then held hearings on H.R. 3884 on March 6, 13, 19 and April 9, 
1975. Witnesses included Senator Mathias, Senator Church, Repre- 
sentative Rodino, and representatives of Executive departments and 
agencies. 

On May 21, 1975, the Judiciary Committee reported H.R. 3884 
with amendments (H. Rept. 94-238). Most of the changes clarified 
and corrected sections of the bill. One amendment advanced from one 
year to two years the effective date for the termination of the existing 
emergency powers. The two-year delay provided time for all Execu- 
tive agencies and departments dependent on emergency statutes to 
seek permanent legislation. Another revision gave the Executive addi- 
tional time to account for expenditures incurred during the exercise 
of emergency powers. The Committee felt that the original schedule 
did not provide sufficient time for the reporting of expenditures. The 
Committee also increased the number of statutes which would be ex- 
empt from the force of the legislation. 

H.R. 3884, as amended by the House Judiciary Committee, passed 
the House on September 4, 1975. On the floor, the House accepted an 
amendment by Representative Matsunaga to provide for automatic 
termination of an emergency if the Executive fails to publicly renew 
the emergency Final passage came easily. Only five Representatives 
voted against the bill, while three hundred and eighty-eight cast their 
ballots in favor of it. 



42 



10 

In the Senate, H.R. 3884 was referred to the Government Opera- 
tions Committee. Senator Church and Senator Mathias testified on 
behalf of the legislation on February 25, 1976, but the full Committee 
has been unable to markup the bill yet, due to the press of other busi- 
ness, mainly proposed reforms concerning the Central Intelligence 
Agency. 

The Special Committee believes that there is no reason to delay 
passage any longer. Both houses of Congress have passed the biil 
overwhelmingly ; the only problem is that the Senate acted in the 93rd 
Congress and the House in the 94th. Seldom has such a significant 
piece of legislation received such universal support. The time for the 
National Emergencies Act to become the law of the land is long 
overdue. 

Work Remaining 

Passage of the National Emergencies Act is tlje top priority, but 

other issues will also deserve attention in the future. 

* 

Issues related to the National Emergencies Act 

1. Committee review of exempted statutes — Under Title V of the 
National Emergencies Act certain statutes are exempted from the 
force of the legislation pending further review by Standing Commit- 
tees in the House and Senate. The Special Committee initially con- 
templated no such exemptions, but it became apparent that because 
of the prolongation of emergency . rule in the United States, many 
governmental departments had come to depend on these laws for their 
day-to-day operations. Abrupt termination of such provisions 
threatened to disrupt activities deemed to be essential to the func- 
tioning of the government. To avoid such disruption and to allow 
careful consideration of the statutes in question and enactment of 
permanent law where appropriate, the Committee agreed to exempt 
these provisions from the effect of the legislation. 

Close scrutiny will be required to determine whether these statutes 
should be continued in force or how they should be amended. Serious 
questions exist about future reliance on laws which were enacted to 
meet emergency situations and which have been used in ways not 
envisioned in the legislative histories of the statutes. 

2. Careful review of requests for permanent law — The National 
Emergencies Act provides for a two-year delay in the termination of 
emergency powers currently possessed by the President. The delay is 
designed to give Executive agencies time to seek permanent legislation 
where necessary. Congressional committees should remain vigilant 
during this period and conduct a rigorous examination in those in- 
stances where permanent law is sought in place of emergency law (i.e., 
law operative only under a condition of proclaimed national emer- 
gency). Care must be taken to preserve the distinction between perma- 
nent law and emergency law and to insure that powers which are 
properly restricted to periods of national emergency do not become 
available in normal times. Committees should examine Executive 
justifications closely and not allow changes solely for reasons of 
convenience. 

3. Potential efforts to thwart intent of law— Congress must be wary 
of potential efforts to bypass or circumvent the intent of the new legis- 
lation. It should be clearly understood that Congress will not accept 



43 



11 

any claim that an emergency is so severe that the President can act 
without the Congressional review required under this legislation. Con- 
gress must be prepared for possible efforts to thwart the intent of the 
bill by dropping the wording "national emergency" and introducing 
different terminology. Committees must insure that all emergency 
legislation, however denominated, has the same accountability and 
reporting requirements and termination procedures. No claim can in 
the future be advanced that a particular type or class of emergency 
can arise in which the President's powers are not subject to Congres- 
sional review. 

Xeed for an Investigation of Emergency Preparedness Efforts Con- 
ducted by the Executive Branch 

The Special Committee recommends that emergency preparedness 
efforts in the United States be investigated to determine the advan- 
tages and disadvantages of the administrative structure established 
in 1973. 

Under Reorganization Plan Number 1 of 1973, the Office of Emer- 
gency Preparedness was dismantled and a more decentralized admin- 
istrative apparatus set up. The Federal Preparedness Agenc}< within 
General Services Administration assumed responsibility for coordi- 
nation and planning; the Federal Disaster Assistance Administration 
within Housing and ITrban Development became the central agency in 
charge of natural disasters; and the Department of the Treasury 
assimilated those functions regarding investigations of imports which 
might threaten national security. 

The Committee believes that now — three years after that reorgani- 
zation — the time has arrived to assess its effects and to evaluate the 
operation of the new structure with particular attention to emergency 
preparedness, coordination, planning, and civil liberties questions. A 
brief exploration by the staff of this Committee raised serious ques- 
tions, and further investigation seems wise. 1 

Need for Congressional Preparations for an Emergency and Continual 
Review of Emergency Law 

The Special Committee believes that Congress must take steps to 
insure that it will be able to act quickly and effectively in time of 
emergency. Action must be taken now if Congress is to play an active, 
responsible role in any future emergency. 

In a letter to Senators Church and Mathias on May 14, 1974. Major- 
ity Leader Mansfield described emergency preparations undertaken by 
the leadership: 

Under the terms of the resolution, adopted December 22, 
1973. the Majority Leaders of each House, or the Minority 
Leaders of each House, or the Speaker and President Pro 
Tempore have the authority to call the Congress back into 
session within 48 hours. It is my intention to insist upon this 
provision for any recess or adjournment of the Senate of a 
duration in excess of three days. 

Although a more efficient system could be established, the 
leadership of the Senate does have the capacity now to contact 

1 See "Staff Report on Emergency Preparedness" in the Appendix. 
—Sr-Rept. 94-922 3 



44 



12 



each Senator within 24 hours. I believe that an enactment 
might be necessary to assure the proper priority by the various 
Executive departments of requests for air transportation 
when the above procedure is invoked. 

The Committee believes that more thought should be given to emer- 
gency preparedness. Congress must anticipate diverse scenarios and 
insure its ability both to survive a crisis and to act effectively in its 
aftermath. There must be an intelligent definition of the role Congress 
should assume in emergency preparedness efforts and other emergency 
activities. 

It may be wise to appoint personnel or to establish an adminis- 
trative mechanism to assume responsibility for coordinating emer- 
gency preparations. A new subcommittee, which need not be large, 
could be set up in the Government Operations Committee, the Joint 
Committee on Congressional Operations, or elsewhere. The subcom- 
mittee could, on an ongoing basis, review Congressional activities, 
oversee Executive efforts, and coordinate the work of the two branches 
of government. It could also work out administrative details of the 
National Emergencies Act and insure that its provisions are followed 
in time of emergency. 

If the Senate were reluctant to set up a permanent body to monitor 
policy developments, it could establish, on a reserve basis, a panel 
which would come into existence as soon as a national emergency has 
been proclaimed. The unit might be a Special or Select Committee, or 
a subcommittee of the Government Operations Committee. The panel 
would provide a coordinating center to bring concentrated attention 
to the emergency. 

Regardless of whether any new Congressional structures are es- 
tablished, regular examination of the canon of emergency statutes, 
Executive orders and related administrative rules, regulations and 
instruments — operative, dormant, limited — is imperative to keep the 
Congress apprised of developments and advised as to corrective actions 
which should be undertaken. The potential threat posed by national 
emergency law to the political well-being of a democracy makes essen- 
tial regular examination of policy developments by a Senate commit- 
tee. Since the Government Operations Committee has had responsi- 
bility for the National Emergencies Act in the Senate, it seems appro- 
priate that this Committee conduct this review. 

Ending Open-Ended Grants of Authority to the Executive 

The Special Committee is particularly concerned that Congress end 
its dangerous practice of extending open-ended authority to the Presi- 
dent. Future legislation should include a terminal date for authorities 
granted to the Executive and provide for Congressional review. 

Past experience presents ample reason for concern about the lack 
of controls on powers extended to the President. Too often the failure 
to include a terminal date or to require Congressional review has led 
to a situation in which the use of an Act belies the purposes for which 
it was enacted. Several examples illustrate this pattern. 

During the Civil War, Congress passed the Feed and Forage Act 
of 18G1 to enable the cavalry in the American West to buv feed for 
their horses when Congress was out of session. Later, Presidents 



45 



13 

invoked the authority of this Act to spend millions of dollars without 
benefit of Congressional action. The law was used to finance American 
marines in Lebanon in 1908, to support the Berlin mobilization in 
1962, and to maintain troops in Southeast Asia. 

In 1933, Congress passed the Emergency Banking Act, which was 
based on Section 5(b) of the Trading with the Enemy Act of 1917. 
The legislation gave President Roosevelt the power to control major 
aspects of the economy — an authority which had formerly been 
reserved to the Congress. Since then, the Executive branch has used 
this authority constantly to regulate many aspects of foreign trade 
and international monetary controls. For instance, when President 
Johnson wanted to control the foreign investments of U.S. companies 
in 1968 to alleviate the balance of payments crisis, he issued an 
Executive Order based on this authority. 2 

In 1950, Congress passed the Defense Production Act giving the 
President wide-ranging powers to control the production of materials 
needed for national defense efforts connected with the Korean War. 
Sixteen years later, the Act was used to fill a Department of Defense 
order for 3 million tropical uniforms for use in Vietnam. In the fourth 
quarter of 1966, the President also relied on the law to require steel. 
copper, and aluminum producers to set aside part of their output for 
defense purposes. 

Most troubling about these open-ended grants of power is that they 
have often been made in response to the exigencies of war and other 
emergency conditions, frequently with the most perfunctory committee 
review and with virtually no consideration of a law's effect on civil 
liberties or the delicate structure of divided powers in the U.S. govern- 
ment. The passage of broad economic measures in 1933 provides an 
extreme example. There was a total of only eight hours of debate in 
both Houses. There were no committee reports: indeed, only one copy 
of the bill was available on the floor. The same pattern of hasty and 
inadequate consideration was repeated during World War II, the 
Korean War. and the 1964 debate on the Tonkin Gulf resolution. 

Lack of Congressional control is particularly characteristic of 
emergency statutes, most of which have no provision for Congressional 
oversight or termination. There are two reasons for this. First, few, 
if any. foresaw that the temporary states of emergency declared in 
1933, 1939, 1941, 1950. 1970, and 1971 would remain in effect for so 
long (the 1939 and 1941 emergencies were terminated in 1952). Second, 
the various administrations which drafted these laws were under- 
standably not concerned about providing for Congressional review, 
oversight, or termination of delegated powers, which gave the 
President wide-ranging authority. 

In any case, the time has come to reverse the pernicious habits of 
the past. It is imperative that termination dates, reporting require- 
ments, and accountability procedures be included in future legisla- 
tion. Those who would argue for greater latitude for the Executive 
should remember the experience of the British who fought all through 
the Second World War on delegation of power extended to the Prime 
Minister for no longer than thirty days at a time. 

2 The Special Committee wishes to commend the House International Relations Sub- 
committee on International Trade and Commerce, which started an investigation of 
Section 5(b) of the Trading With the Enemy Act in the fall of 1975. 



46 



14 

Investigating and Instituting Stricter Controls Over Delegated 
Powers 

Concurrent with efforts to include terminal dates and provision for 
Congressional review in future legislation, there must be a reexamina- 
tion of the whole isue of Congressional delegations of power to the 
Executive. 

Fortunately, the Senate Judiciary Subcommittee on Separation of 
Powers has already initiated an investigation in this area. That sub- 
committee is examining the question of whether the delegation doc- 
trine retains any vitality. The study will focus on the pattern of 
abdication of responsibility by the Congress through the use of broad 
unstructured mandates and the excessive use by the Executive of 
guidelines and Executive orders either to implement policies not con- 
curred in by Congress or to aggrandize narrowly delegated power. 

The Special Committee wishes to emphasize the importance of this 
inquiry. The Committee's examination of delegated emergency powers 
revealed the extent of power the Legislative branch has delegated to 
the Executive. Emergency powers statutes embrace every aspect of 
xlmrican life, and it only takes a quick glance at certain statutes to 
underscore the vast transfer of power to the Executive. For instance, 
Section 712 of Title 10 of the United States Code, entitled "Foreign 
Governments : Detail to Assist," reads : 

(a) Upon the application of a country concerned, the Presi- 
dent, whenever he considers it in the public interest, may detail 
members of the Army, Navy, Air Force, and Marine Corps to 
assist in military matters — 

(1) any republic in North America, Central America, or 
South America ; 

(2) the Republic of Cuba, Haiti, or Santo Domingo; and 

(3) during a war or a declared national emergency, any 
other country that he considers it advisable to assist in the 
interest of national defense. 

(b) Subject to the prior approval of the Secretary of the mili- 
tary department concerned, a member detailed under this section 
may accept any office from the country to which he is detailed. 
He is entitled to credit for all service while so detailed, as if serv- 
ing with the armed forces of the United States. Arrangements 
may be made by the President, with countries to which such mem- 
bers are detailed to perform functions under this section, for 
reimbursement to the United States or other sharing of the cost 
of performing such functions. 

The Defense Department, in answer to inquiries by the Special 
Committee concerning this provision, has stated that it has only been 
used with regard to Latin America, Liberia and Iran, and interprets 
its applicability as being limited to noncombatant advisers. The lan- 
guage of Section 712, however, is wide open to other interpretations. 

The transfer of power of which this statute is illustrative is the re- 
sult of Congressional mandate, not Executive usurpation. Over the 
past four decades the Congress has been content to give the Executive 
increasing latitude to act without reference to Congress. In a Yale 
Review article, entitled "The Routinization of Crisis Government," 
Donald L. Robinson underscores the trend : 

A review of the development of [emergency] statutes re- 
veals the deterioration of legislative form during the twenti- 



47 



15 

eth century. They vary most significantly in the guidelines 
they lay down for administrators, and it is here that a trend 
is most apparent, Some, like the statute giving the Presi- 
dent power to call the National Guard into Federal service, 
have always been couched in language giving the President 
broad discretion . . . statutes dealing with the military have 
always tended to be broad in their delegations to the Presi- 
dent. 

When emergency powers touch upon domestic industry, 
however, Congress has traditionally tended to show greater 
care in the delegation of powers to the Executive branch. In 
1916, for example, Congress passed an act providing for the 
mobilization of industries capable of producing war material. 
If such industries refused to comply with government orders 
"in time of war or when war is imminent," the President was 
authorized to take possession and, through an appointed 
Board of Mobilization, to operate them. Firms were to be 
given "fair and just" compensation for their products or for 
the "rental'' of their facilities. Despite pressure from the Tru- 
man Administration, Congress steadfastly refused to broaden 
the act by authorizing seizures in peacetime emergencies or 
even in the event of undeclared wars like the Korean. But, in 
1956, this statute was repealed, and replaced by one much 
briefer, stripped of all qualifications as to the kind of enter- 
prise subject to seizure and the kinds of compliance that would 
forestall seizure. Under present law, when the President 
deems war imminent, he "may take possession of any plant'' 
which refuses to "manufacture the kind, quantity, or quality 
of arms or ammunition . . . ordered by the Secretary [of the 
Army] ; or ... to furnish them at a reasonable price as deter- 
mined by the Secretary.'' 

In the case of labor regulations, an even more marked trend 
toward legislative permissiveness is apparent. In 1917, Con- 
gress passed an act providing for the suspension of the eight- 
hour day on contract work for the government during de- 
clared emergencies. In 1962, the chapter dealing with "hours 
of labor on public works" was completely revised. No longer 
do the powers of the Secretary of Labor to suspend the pro- 
visions of the law depend upon the existence of a declared 
emergency. Instead, he is given discretion to permit varia- 
tions and* exemptions "to and from any or all provisions" 
of the act, if he finds it "necessary and proper in the public 
interest to prevent injustice or undue hardship or to avoid . 
serious impairment of the conduct of Government business." 
The report of the Senate Committee on Labor and Public 
Welfare, which urged the passage of this revised "work stand- 
ards" legislation, fails even to mention the change cited here. 

The Special Committee believes that it is time to reverse this trend. 
In the future, when Congress delegates power to the Executive, it 
should be more specific in defining the conditions in which the author- 
ity may be used. Beyond that, the challenge is to devise means by 
which Congress can monitor the exercise of delegated powers and con- 
trol those actions deemed to be unnecessary or undesirable. Serious 
consideration should be given to legislation which would give Con- 



48 



16 

gress some type of veto over Executive branch rules and regulations 
judged to be inconsistent with the legislative intent of the authorizing 
statute. The law might also cover Executive directives, rules, and reg- 
ulations which only come into effect during a condition of national 
emergency. These instruments, though effective only at some future 
time, should be subject to Congressional scrutiny prior to issuance or 
activation so that, when they are needed, they will truly reflect the in- 
tent of the Legislative branch and will not require adjustment in the 
midst of a crisis. 

Improving the Accountability of Executive Decisionmaking 

There must also be an effort to increase Executive accountability 
by regularizing the procedures surrounding the issuance of Executive 
orders. 

The Special Committee's examination of "Executive Orders in 
Times of War and National Emergency'' underscored the chaotic and 
secretive conditions that envelop Executive decisionmaking. The Com- 
mittee found considerable confusion in procedure, a decided absence 
of a comprehensive means for public accountability, and an uncertain 
basis for the determination of legal authority on which Executive di- 
rectives may be issued or challenged. 

Title o of the Code of Federal Regulations indicates that in issuing 
decisions and commands, Presidents have used such diverse forms as 
letters, memorandums, directives, notice, reorganization plans, admin- 
istrative designation, and military orders. The decision whether to 
publish an Executive decision is clearly a result of the President's own 
discretion rather than any prescription of law. In recent years, the 
National Security Action Memorandums of Presidents Kennedy and 
Johnson and the National Security Action Directives of President 
Nixon represent a new method for promulgating decisions, in areas of 
the gravest importance. Such decisions are not specifically required by 
law to be published in any register, even in a classified form; none 
have prescribed formats or procedures; none of these vital Executive 
decisions are revealed to Congress or the public except under irregular 
arbitrary or accidental circumstances. For instance, the 1969-1970 
secret bombing of Cambodia has recently come before Congressional 
and public notice. The public record reveals very little about how the 
commands for such far reaching actions were issued. What is most 
disturbing is lack of access to any authoritative records in these mat- 
ters. In short, there is no formal accountability for the most cru- 
cial Executive decisions affecting the lives of citizens and the freedom 
of individuals and institutions. 

The problem is exacerbated by the classification of sensitive or im- 
portant Executive decisions, classification which in most cases pre- 
vents even Congress from having access to these documents. While 
no one would wish to prevent sensitive documents from being classi- 
fied for reasonable cause, the absolute discretion given to the Execu- 
tive in this area has led to abuse. It has permitted and encouraged 
inclusion in this category of many documents in no way connected 
with essential national security. Moreover, not only are their contents 
kept secret, but even the extent of such documents is unascertainable. 
On the basis of the handling of past Presidential papers, many of 
these documents will, of course, in one manner or another, eventually 
bo declassified, but many have been withheld by Executive discretion. 



49 



17 

The legal record of Executive decisionmaking has thus continued 
to be closed from the light of public or Congressional scrutiny 
through the use of classified procedures which withhold necessary 
documents from Congress, by failure to establish substantive criteria 
for publication and by bypassing existing standards. As a result, the 
legality of a substantial area of operations of the Government has 
in large measure been immune from any oversight or scrutiny by 
Congress. And the situation is growing worse. The number of formal 
Executive Orders and Proclamations has, in recent years, declined 
from many hundreds to about 70 annually. Since it is certain that 
as the United States has grown in size and power the Executive has 
issued more and more decisions, many of which are of the greatest 
importance, it can only be surmised that such commands continue to 
be issued in irregular form and in ways hidden from Congress and 
the people. As the role of the Executive in Government continues to 
expand, this must be cause for concern. 

Again, the complacency of the Congress can be cited as the reason 
for this disorderly state of affairs. Congress has not specified sub- 
stantive standards for the recording of Presidential directives. In 
addition, Congress has not yet enacted laws to prevent the Execu- 
tive branch from abusing its power to classify documents where its 
purpose is to withhold information from Congress and the public. 

Improving the accountability of Executive decisionmaking must 
be a matter of the highest priority. One task — that of codification — 
lias already been begun by the Federal Register. That organization 
has embarked upon a codification of all published Executive orders 
issued between 1961 and 1075. This codification, which is expected to 
be finished by the summer of 1976. will represent the first definitive 
compilation of published Executive directives. In the past the exact 
legal status of Executive orders has been virtually impossible to 
ascertain. While many Executive orders have specified which orders 
they were modifying or superseding, this practice has by no means 
been uniform. 

The next step would seem to be amendment of the Federal Register 
Act of 1935, which provides the present statutory guidelines for the 
issuance of Executive decisions and orders. That Act is supplemented 
by a series of Executive orders by which the Executive prescribes for 
itself additional procedures to be observed. Both the statutory and 
the self-imposed regulations, however, fail to diminish significantly 
the fundamental arbitrariness of the system, and the Executive's own 
procedures appear to be followed only insofar as it is convenient to the 
Executive's pur]x>se at the time. 

The Federal Register Act (44 U.S.C. 1505) provides for the pub- 
lication of: 

1. Presidential Proclamations and Executive Orders, except 
those not having general applicability and legal effect or effective 
only against Federal Agencies or persons in their capacity as 
officers, agents or employees thereof ; 

2. Documents or classes of documents that the President may 
determine from time to time have general applicability and legal 
effect ; and 

3. Documents or classes of documents that may be required 
so to be published by Act of Congress. 



50 



18 

The categories enumerated herein are not all-inclusive. First of 
all, there is the problem of terminology. If a document is not specifi- 
cally designated as an "Executive Order" or "Presidential Proclama- 
tion," the decision of whether or not it will be published as a part of 
the public record is left to the discretion of the President and his 
advisers. If he wishes a document to have "general applicability an 
legal effect," he will presumably have it published. If, however, the 
order is directed only to an official or an agency and does not pur- 
port to regulate the conduct of private citizens, there is no legal 
necessity for its publication. Most Executive directives fall into this 
category. Although most Executive directives pertain to exclusively 
internal bureaucratic operations, many others have great consequences 
for the Government, the Nation, and individuals as well. One need 
cite only the decisionmaking which governed the war in Indochina 
to illustrate the point most vividly. Although clause 3 of 44 U.S.C. 
1505 permits Congress to designate classes of documents for publica- 
tion. Congress has never addressed itself directly to this question in 
the broad sense here considered. 

Amendment could be made to insure the publication of all signifi- 
cant Executive directives, however denominated, in the Federal 
Register. At the same time some thought should be given to establish- 
ing a system whereby classified rules and orders, by whatever name 
called, would be registered. 

Until Congress grapples with these problems directly, it will be 
confronted with a continuing veil of secrecy and will be unable to 
conduct effective oversight of the Executive branch. 

Conclusion 

While much work remains, none of it is more important than pas- 
sage of the National Emergencies Act. Right now, hundreds of emer- 
gency statutes confer enough authority on the President to rule the 
country without reference to normal constitutional process. Revela- 
tions of how power has been abused by high government officials must 
give rise to concern about the potential exercise, unchecked by the 
Congress or the American people, of this extraordinary power. The 
National Emergencies Act would end this threat and insure that the 
powers now in the hands of the Executive will be utilized only in time 
of genuine emergency and then only under safeguards providing for 
Congressional review. 

The Special Committee believes that it has provided the nation with 
an effective, workable method for dealing with future emergencies in 
accord with constitutional processes. The legislation establishes stat- 
utory guidelines for the declaration, administration, and termination 
of national emergencies. At the minimum, it provides procedure and 
due process for the exercise of emergency authority. 

The bill rests on the Committee's conviction that both the Executive 
and Legislative branches have vital roles to play. The Constitution 
makes no provision for suspending the distribution of power in the 
United States Government in time of emergency. And it would be 
wrong to argue that the framers did not anticipate crises. As Justice 
Jackson observed, "they knew what emergencies were, knew the pres- 
sures they engender for authoritative action, knew, too, how they 



51 



19 

afford a ready pretext for usurpation." Constitutional scholar Gerhard 
Casper has commented : 

the refusal to arrange for institutional changes during emer- 
gencies expresses the confidence of the Founding Fathers 
that the ordinary institutions were so designed as to be capa- 
ble of coping with extraordinary events. 3 

The Committee, consequently, cannot accept any doctrine which 
holds that a nation in extremis must submit to the will of a single in- 
dividual. Such is the doctrine which has carried India to its present 
state, where the writ of habeas corpus is no longer recognized. Our 
forefathers — George Washington, James Madison, and others — cau- 
tioned, repeatedly, that one branch of government must not be allowed 
to usurp the powers of another. Thomas Jefferson knew that "the way 
to have a good and safe government, is not to trust it all to one, but to 
divide it among the many." In answer to his own question, "What has 
destroyed liberty and rights of man in every government which has 
ever existed under the sun?" he replied, "the generalizing and concen- 
trating of all cares and powers into one bod} 7 ." 4 Xo doubt we can en- 
vision circumstances where greater authority must be lodged in the 
Executive, but the Executive cannot be allowed to arrogate those 
powers to itself without recourse to the Legislative branch. 

The Special Committee can only conclude by reemphasizing that 
emergency laws and procedures in the United States have been 
neglected for too long, and that Congress must pass the National 
Emergencies Act to end a potentially dangerous situation. To fail to 
act is to invite abuse. Surely now, after the Vietnam War, the bombing 
of Cambodia, the Watergate abuses, and the violation of the rights of 
Americans by the intelligence agencies, Congress is too wise to do that. 



3 Gerhard Casper, Statement, U.S. Congress, Senate, Special Committee on the Termi- 
nation of the National Emergency, "Constitutional Questions Concerning Emergency 
Powers, Hearings," April 12, 1973. 93rd Congress, 1st session, p. 77. 

* Thomas Jefferson letter to Joseph C Cabell, 1816. 



* SrRept. 9^822 ( 1 



52 
APPENDIXES 



Publications of Special Committee ox National Emergencies 
and Delegated Emergency Powers 

reports 

A Brief History of Emergency Powers in the United States: U.S. 
Senate, Committee Print, 93d Congress, 2d Session, July, 1974. 
U.S. Government Printing Office, Washington, D.C. 140 pp. 

Emergency Powers Statutes : Provisions of Federal Law Now in Effect 
Delegating to the Executive Extraordinary Authority in Time of 
National Emergency : U.S. Senate, Senate Report 93-549, 93d Con- 
gress, 1st Session, November 19, 1973. U.S. Government Printing 
Office, Washington, D.C. 607 pp. 

Summary of Emergency Power Statutes: U.S. Senate, Committee 
Print, 93d Congress, 2d Session, October, 1973. U.S. Government 
Printing Office, Washington, D.C. 74 pp. 

Executive Orders in Times of War and National Emergency: U.S. 
Senate, Senate Report 93-1280, 93d Congress, 2d Session, October 16. 
1974. U.S. Government Printing Office, Washington, D.C. 283 pp. 

Summary of Executive Orders in Times of War and National Emer- 
gency: U.S. Senate, Committee Print, 93d Congress, 2d Session,. 
August, 1974. U.S. Government Printing Office, Washington, D.C. 
69 pp. 

EXECUTIVE REPLIES 

Part 1 — Evaluation of Emergency Powers Statutes. U.S. Senate, 
Committee Print, 93d Congress, 2d Session. November, 1974. U.S. 
Government Printing Office, Washington, D.C. 126 pp. 

Part 2 — Summaries of the Executive Branch and Committee Recom- 
mendations. U.S. Senate, Committee Print, 93d Congress, 2d Ses'sion T 
November, 1974. U.S. Government Printing Office, Washington, 
D.C. 322 pp. 

Part 3— Statutes at Large. U.S. Senate, Committee Print, 93d Con- 
gress, 2d Session, November, 1974. U.S. Government Printing Office,. 
Washington, D.C. 68 pp. 

HEARINGS 

Part 1 — Constitutional Questions Concerning Emergency Powers. 
U.S. Senate, 93d Congress, 1st Session. April 11, 12, 1973. U.S. 
Government Printing Office, Washington, D.C. 496 pp. 

Part 2 — Views of Former Attorneys General. U.S. Senate. 93d Con- 
gress, 2d Session, July 24, 1973. U.S. Government Printing Office, 
Washington, D.C. 225 pp. 

(21) 



53 



99 



Part 3 — Constitutional Questions Concerning Emergency Powers. 
U.S. Senate, 93d Congress, 1st Session, November 28, 1973. U.S. 
Government Printing Office, Washington, D.C. 196 pp. 

Errata Section 

The Special Committee would like to note that there is an error in 
the information on page 96 of Senate Report Number 93-1280, 
''Executive Orders in Times of War and National Emergency." The 
original notation reads that ". . . Executive Order 11798 . . . revoked 
both Executive Order 11796 and Executive Order 11533." According 
to Presidential Documents Division, Office of the Federal Register. 
Executive Order 11798 revoked Executive Order 11796, but continued 
in "full force and effect" Executive Order 11533. The full text of 
Executive Order 11798 reads as follows : 

REVOKING EXECUTIVE ORDER NO. 11796 OF JULY 30, 19 74, AND 
CONTINUING IN EFFECT EXECUTIVE ORDER NO. 1 1533 OF JUNE 4, 
1970, RELATING TO THE ADMINISTRATION OF EXPORT CONTROLS 

By virtue of the authority vested in the President by the 
Constitution and statutes of the United States, including the 
statutes referred to herein, it is herebv ordered : 

Section 1. Executive Order No. ' 11796 of July 30, 1974, 
issued under the authority of the act of October 6, 1917, as 
amended (12 U.S.C. 95a), is hereby revoked, except that this 
revocation shall not affect any violation of any rules, regula- 
tions, orders, licenses, and other froms of administrative ac- 
tion under said orders which occurred during the period said 
order was in effect. - 

Section 2. Pursuant to Public Law 93-372 of August 14, 
1974, effective as of the close of July 30, 1974, Executive 
Order No. 11533 of June 4, 1970, and all delegations, redele- 
gations, rules, regulations, orders, licenses, and other forms 
of administrative action under said order which were in ef- 
fect on July 30, 1974, and which have not been revoked ad- 
ministratively or legislatively, are continued and shall be in 
full force and effect until amended, modified, or terminated 
by proper authority. 

Gerald R. Ford. 

The White House, August IJf, 107. If.. 

U. S. Senate, 
Special Committee on National Emergencies 

and Delegated Emergency Powers, 

Washington, D.C, April 23, 1976. 
Hon. Abraham Ribicoff, 

Chairman, Government Operations Committee, Dirhsen Senate Office 
Building, Washington. D.C. 
Dear Senator Ribicoff: The Special Committee on National Emer- 
gencies and Delegated Emergency Powers has prepared a Source- 
book on the National Emergencies Act. The document constitutes a 
legislative history of the Act, bringing together into one volume texts 



54 



23 

of bills, reports, Senate and House debate, and other pertinent docu- 
ments. The volume also contains a bibliography of readings on emer- 
gency powers and a short introductory essay describing the evolution 
of the legislation. The Special Committee believes that the document 
will prove enormously useful to scholars and researchers and could 
be extremely important should a dispute over legislative intent ever 
arise in time of emergency. 

Since the Special Committee is scheduled to terminate on April 30, 
1976, we would like to request that the Government Operations Com- 
mittee assume responsibility for completion of the Sourcebook. The 
only tasks that remain are: (1) to update the introductory essay on 
the legislative history of the bill; (2) to insert final documents, 
such as the Government Operations report, Senate debate, and the 
President's messages on the legislation; and (3) to issue the docu- 
ment for final printing. (All the other documents have been printed, 
proofread and are ready for final printing.) 

Should you have further questions concerning the document and 
the work required to finish it, please contact Wilkie Sawyer or Gayle 
Fitzpatrick at 4-1281. 

We would be most grateful for your assistance. 
Sincerely, 

Charles McC. Mathias, Jr. 
Frank Church. 



bo 



STAFF REPORT ON EMERGENCY PREPAREDNESS 
IN THE UNITED STATES 

Senate Special Committee ox National Emergencies and 
Delegated Emergency Powers 

March 1976 



66-474 O - 76 - 5 



56 



Emergency Preparedness in the United States 

In its investigations the Special Committee on National Emergen- 
cies and Delegated Emergency Powers has concentrated on determin- 
ing the extent of emergency power delegated to the President and 
recommending procedures for the declaration, administration, and ter- 
mination of emergencies. It has not attempted to evaluate the state of 
emergency preparedness in the United States. Only in its final days 
did the Committee probe this question at all, and then only briefly. 

The range and complexity of emergency issues make any evaluation 
extremely difficult. 1 Too often government units, trapped within their 
particular fragment of the bureaucratic puzzle, fail to examine issues 
in all their parameters. In its brief probing of emergency preparedness 
issues, the staff of the Committee attempted to cut across customary 
lines of fragmentation and to take a broad view. To do this, the staff 
solicited the views of representatives of Federal emergency agencies, 
Congressional staff members, and nongovernmental experts. 

The exploration raised serious questions, and the staff believes that 
it is time to assess the effects of the 1973 administrative reorganization 
and to evaluate the operation of the new structure with particular at- 
tention to emergency preparedness, coordination, planning, and civil 
liberties questions. 

To facilitate such a study and to stimulate interest in and aware- 
ness of the many issues involved, this report will summarize the find- 
ings of the staff's brief survey. la 

Background 

Until 1973 responsibility for emergency coordination was vested in 
the Office of Emergency Preparedness (OEP), located in the Execu- 
tive Office of the President. OEP drew its authority from many 
sources, some by delegation from the President and others directly by 
statute. Its resource planning and mobilization functions were 
founded in part on the National Security Act of 1947, 2 the Defense 
Production Act of 1950, 3 and the Strategic and Critical Materials 
Stockpiling Act. 4 In the Eisenhower administration, civil and defense 



1 To evaluate planning and preparedness efforts in a comprehensive manner, it is 
useful to develop analytical frameworks which will help structure an overview. Two 
frameworks may be useful to later investigators. One method involves classifying the 
specific types of emergency that could occur : 

Economic : Depression, inflation, strikes, housing, agricultural, commodity trading, 
municipal or corporate bankruptcies, domestic program failures, etc. 

Natural Catastrophe : Drought, agricultural pests, plagues, climatic changes, famine, 
floods, earthquakes, etc. 

National Security : Defense, civil defense, internal security, hostilities, war, terrorism, 
embargoes, nuclear threats (peacetime and wartime), etc. 

Another method would be to assess: (1) Organizational capabilities, (2) material 
resources, and (3) manpower availability. 

la This report represents an initial probing of preparedness issues, rather than a final 
statement on them. The staff was not able to conduct a thorough examination, and its 
findings must be viewed with caution. 

2 61 Stat. 495, 499 ; 50 U.S.C. 404. 

3 60 Stat. 596 ; 50 U.S.C. app., sec. 2061 et seq. 

4 64 Stat. 798; 50 U.S.C. 98 et seq. See also 50 U.S.C. app., sec. 2271 note and Execu- 
tive Order 11051 set out therein. 

(27) 



57 



28 

mobilization functions were merged when Reorganization Plan Xo. 1 
of 1958 joined the functions of the Federal Civil Defense Administra- 
tion and the Office of Defense Mobilization in a new component of the 
Executive Office of the President called the Office of Defense and 
Civilian Mobilization. 5 The plan provided for a Director and Deputy 
Director, three Assistant Directors, and ten Regional Directors : made 
the Director a member of the National Security Council; and attached 
to the new entity the Civil Defense Advisory Council, originally 
created by the Federal Civil Defense Act of 1950. 6 By successive 
statutes, the Office was renamed Office of Civil and Defense Mobiliza- 
tion, 7 Office of Emergency Planning, 8 and, finally, Office of Emergency 
Preparedness. 9 

Through the years, OEP lost some functions and gained others. Bv 
Executive Order 10952, dated July 20, 1961, 10 President Kennedy 
withdrew designated civil defense functions from OEP and assiirned 
them to the Department of Defense, where they still remain. OEP's 
responsibility for telecommunications policy was withdrawn (and an 
Assistant Director eliminated) when the Office of Telecommunications 
Policy was established by Reorganization Plan Xo. 1 of 1970. 11 Im- 
portant new responsibilities for supervising disaster relief were thrust 
upon OEP by the Disaster Relief Act of 1970. 12 The OEP Director 
was authorized to form emergency support teams of Federal person- 
nel: to draw upon outside organizations; to establish regional office-: 
to determine qualifications for assistance; to guide the activities of 
emergency personnel; to provide temporary housing, transportation, 
communications, and other facilities in emergencies; and to take other 
actions in major disaster areas. Other laws added to OEP ? s responsi- 
bilities in disaster relief, such as those which authorize Federal assi>t- 
ance to educational institutions which have suffered damage or 
destruction. 13 

By law or delegation of Presidential authority, OEP also served 
in various other capacities. Under section 232 of the Trade Expan- 
sion Act of 1962, for example, the OEP Dii-ector was responsible 
for investigating imports which might threaten to impair the na- 
tional security. 14 He served by Presidential appointment as Chair- 
man of the Oil Policy Committee, established by President Xixon 
in February, 1970, following the report of a Cabinet task force on 
oil import policy. 15 

On January 26, 1973, President Xixon submitted to the Congress 
Reorganziation Plan Number 1 of 1973. That plan called for the 
abolition o,f the Office of Emergency Preparedness, the Office of 
Science and Technology and the National Aeronautics and Space 
Council and the transfer of their functions to old line agencies. Xixon 

6 72 Stat. 1709: 5 U.R.C.. app. 5«o. Also printed at 50 U.3.C., app., sec. 2271 note. 
•64 Stat. 1245, 1247; 50 U.S.C. app.. Bees 2251-2297. 

7 72 Stat. 861 ; see 50 U.S.C. app., sec. 2271 note. 

8 75 Stat. 630 ; see 50 U.S.C. app., sec. 2271 note. 

9 82 Stat. 1194 ; see 50 U.S.C. app., sec. 2271 note. 
» 3 CFR. 1959-19G3 Comp., p. 479. 

« 5 U.S.C, app., p. 605. 

"42 U.S.C. sec. 4401 et sen. 

18 81 Stat. 810. 86 Stat. 299. 

14 19 U.S.C. 862(b). 

15 The information on pages 3-5 was excerpted from: U.S. Congress. Hou8e. Committee 
on Government Operations. Reorganization Plan No. 1 of 1973 : House Report No. 93-106, 
93rd Congress, 1st Session. Washington, U.S. Government Printing Office, 1973, pp. 12-13. 



58 



29 

described the changes in the emergency preparedness area in the 
following words: 

In the interest of efficiency and economy, we can now fur- 
ther streamline the Executive Office of the President by 
formally relocating those responsibilities and closing the 
Office of Emergency Preparedness. 

I propose to accomplish this reform in two steps. First, 
reorganization plan No. 1 would transfer to the President all 
functions previously vested by law in the office or its director, 
except the director's role as a member of the National Security 
Council, which would be abolished ; and it would abolish the 
Office of Emergency Preparedness. 

The functions to be transferred to the President from 
OEP largely incidental to emergency authorities already 
vested in him. They include functions under the Disaster 
Relief Act of 1970; the function o.f determining whether a 
major disaster has occurred within the meaning of (1) Sec- 
tion 7 of the Act of September 30, 1950, as amended, 30 
U.S.C. 241-1, or (2) Section 7G2 (a) of the Higher Educa- 
tion Act of 1965, as added by Section 161 (a) of the Edu- 
cation Amendments of 1972, Public Law 92-318, 86 Stat. 
288, 299 (relating to the furnishing by the Commissioner 
of Education of disaster relief assistance for educational 
purposes) ; and functions under Section 232 of the Trade 
Expansion Act of 1962, as amended (19 U.S.C. 1862), with 
respect to the conduct of investigations to determine the 
effects on national security of the importation of certain 
articles. 

The Civil Defense Advisory Council within OEP would 
also be abloished by this plan, as changes in domestic and 
international conditions since its establishment in 1950 have 
now obviated the need for a standing council of this type. 
Should advice of the kind the council has provided be re- 
quired again in the future, state and local officials and ex- 
perts in the field can be consulted on an ad hoc basis. 

Second, as soon as the plan became effective, I would 
delegate OEP's .former functions as follows : 

All OEP responsibilities having to do with prepared- 
ness for and relief of civil emergencies and disasters 
would be transferred to the Department of Housing 
and Urban Development. This would provide greater 
field capabilities for coordination of federal disaster 
assistance with that provided by states and local com- 
munities, and would be in keeping with the objective 
of creating a broad, new Department of Community 
Development. 

OEPs responsibilities for measures to ensure the con- 
tinuity of civil government operations in the event of 
major military attack would be reassigned to the Gen- 
eral Services Administration, as would responsibility for 
resource mobilization including the management of na- 
tional security stockpiles, with policy guidance in both 



59 



30 

cases to be provided by the National Security Council, 
and with economic considerations relating to changes in 
stockpile levels to be coordinated by the Council on Eco- 
nomic Policy. 

Investigations of importa which might threaten the 

national security — assigned to OEP by Section 232 of the 

Trade Expansion Act of 1962 — would be reassigned to 

the Treasury Department, whose other trade studies give 

it a ready-made capability in this field; the National 

Security Council would maintain its supervisory role 

over strategic imports. 

Those disaster relief authorities which have been reserved 

to the President in the past, such as the authority to declare 

major disasters, will continue to be exercised by him under 

rapid interagency coordination, the federal response will be 

coordinated by the Executive Office of the President in charge 

of executive management. 

The Oil Policy Committee will continue to function as in 
the past, unaffected by this reorganization, except that I will 
designate the Deputy Secretary of the Treasury as chairman 
in place of the Director of OEP. The Committee will operate 
under the general supervision of the Assistant to the Presi- 
dent in charge of economic affairs. 

The functions which would be abolished by this plan, and 
the statutory authorities for each, are : 

(1) The functions of the Director of the Office of Emer- 
gency Preparedness with respect to being a member of the 
National Security Council (Sec. 101, National Security Act 
of 1947, as amended, 50 U.S.C. 402; and Sec. 4, Reorganiza- 
tion Plan No. 1 of 1958) ; 

(2) The functions of the Civil Defense Advisory Council 
(Sec. 102(a) Federal Civil Defense Act of 1950; 50 U.S.C. 
App. 2272 (a)) 16 

Under the Reorganization Act of 1949, Executive reorganization 
proposals take effect automatically unless either House of Congress 
disapproves the plan within sixty days of its submission to Congress. 
Both the House and Senate Government Operations Committee held 
hearings on Reorganization Plan No. 1 of 1973. The Senate took no 
action, while the House issued a report approving the plan. The 
House group observed that "the President cannot be compelled to 
utilize a policymaking and advisory apparatus in the Executive Office 
against bis own preferences." The House report concluded: 

We cannot predict how well the agencies will execute the 
functions and responsibilities transferred to them by the re- 
organization plan. The quality of leadership, the funds and 
resources available, management techniques, and other fac- 
tors will make a large difference. The fear expressed by some 
critics of the plan is that the transferred functions will be 
buried at lower levels in departmental or agency bureaucra- 

19 U.S., President. Message, "Reorganization Plan No. 1, 1973," Hearings, before a 
Subcommittee of the Committee on Government Operations, House of Representatives 
03rd Congress, 1st Session. Washington, U.S. Government Printing Office, 1973, pp. 



60 



31 



cies, and that performance will suffer accordingly. This result 
is possible, but it will not follow automatically if common 
sense, good management, and sufficient resources are brought 
to bear. 17 

Neither house having disapproved, the reorganization plan went 
into effect. OEP was dismantled, and its authorities were split up 
between different Executive agencies. The Federal Preparedness 
Agency within GSA — known during a transitional period as the 
Office of Preparedness — assumed responsibility for coordination and 
planning. The Federal Disaster Assistance Administration within 
HUD became the central agency in charge of natural disasters. The 
Department of the Treasury assimilated those OEP functions regard- 
ing investigation of imports which might threaten national security. 
The Deputy Security of the Treasury replaced the OEP director as 
Chairman of the Oil Policy Committee, and FPA lost the seat which 
OEP had had on the National Security Council. The Civil Defense 
Advisory Council within OEP was abolished, while the Defense Civil 
Preparedness Agency, set up in 1972, continued as before. 

Two investigations explored emergency preparedness issues in the 
two years following the reorganization. Hearings conducted in 1973 
by the Subcommittee on Disaster Relief of the Senate Public Works 
Committee focused on the adequacy and effectiveness of federal disas- 
ter relief legislation. In 1974, hearings held by a House Appropriations 
Subcommittee indicated the need for a more complete investigation. 
There was confusion about the exact relationship of the DCPA and the 
Office of Preparedness (known as the FPA now). Georgiana Sheldon, 
Deputy Director of the DCPA, decried the lack of Congressional 
oversight. 

Recently more studies have been launched. In January 1976, the 
House Armed Services Subcommittee on Investigations set up a panel 
to examine the nation's civil defense. The inquiry is particularly im- 
portant since the Senate Armed Services Preparedness Investigating 
Subcommittee has not held any hearings in the last year and a half. 
In December 1975, GAO initiated its own examination of the Na- 
tion's civil defense program. The study will focus on the Defense Civil 
Preparedness Agency is an effort to determine its operating efficiency. 
GAO plans to investigate the practicality of the Agency's programs 
and the effectiveness of its assistance to states and local communities. 
GAO is particularly concerned about possible overlap and inefficiency 
between DCPA, FDAA, and FPA. Recently DCPA has been helping 
anticipate and prepare for possible crises. Once a disaster has oc- 
curred, the FDAA has assumed operational responsibility. FPA has 
played an overall supervisory and coordinating role. GAO will in- 
vestigate how these divided responsibilities operate in practice. 

Concurrently, the Senate Government Operations Committee has 
begun to examine the DMPA, FPA, FDAA, and the Emergency Pre- 
paredness Office of the Secretary of the Interior. The Government 
Operations staff has concerned that considerable overlap existed in 
the programs of these agencies. 

TMn" V«> ?£?#"l?; , Ho " se - C °™ mlt J& e °* Government Operations. Reorganization Plan 
Gov/rnmenfrrin^inrOffice^Tt P 19 106 ' ^ C ° ngreSS ' Ut Se8S, ° D - Washi ^ton, U.S. 



32 

Organization 

While promising, these inquiries will stop short of an overall assess- 
ment of both emergency preparedness and planning efforts in this 
country and the wisdom of the new administrative structure set up 
under Reorganization Plan Number 1 of 1973. 

The Committee staff believes that now— three years after that re- 
organization — an investigation into preparedness operations is in 
order. During recent years a trend toward decentralizing govern- 
mental functions has emerged, but serious questions exist about 
whether the nation benefits from decentralization of emergency pre- 
paredness activities. Alternatives to the present arrangement must be 
examined for their possible benefits. 

The current policy of the U.S. is to operate a decentralized system, 
coordinated by an agency located in GSA, the Federal Preparedness 
Agency. FPA retains some of the operational duties of OEP, most 
notably in maintaining stockpiles and underground facilities and sup- 
plies, but compared to its predecessor, FPA is relatively free of oper- 
ational responsibility. Its main responsibility is to provide policy 
guidance for emergency preparedness programs and to coordinate 
programs throughout the U.S. government. The Agency operates with 
a staff of over 200 people and with an unclassified administrative 
budget of about $7 million. Ten regional offices provide guidance to 
other Federal field offices and to state and local governments in plan- 
ning and developing their readiness programs. Beyond its administra- 
tive structure, FPA has three main divisions: (1) Conflict Prepared- 
ness runs emergency facilities, "Continuity of the U.S. Government" 
operations, and other programs; (2) Civil Crisis Preparedness han- 
dles stockpiles, industrial mobilization, and crisis management; and 
(3) Research, Development, and Program Development explores in- 
creasingly-sophisticated technologies. 

A discussion of the relative merits of the present and alternate ad- 
ministrative structures might start with an examination of the deci- 
sion to dismantle OEP and to establish FPA. Nixon said that he was 
acting "in the interest of efficiency and economy." Later, in testimony, 
Fred Malek, Deputy Director of the Office of Management and 
Budget, stated : 

One objective is to reduce the size of the Executive Office, 
but, more important is the need for reorienting the Executive 
Office to focus on its original mission as a staff for top-level 
policy formation and monitoring of policy execution in 
broad functional areas. These actions are also'consistent with 
the President's overall purpose of strengthening and upgrad- 
ing the capacity of our line departments and agencies, and to 
press for further decentralization of Federal activity to field 
offices and even to the communities themselves, wherever we 
can bring the Government closer to the people. 18 

The staff found that most people interviewed placed great stress on 
the political pressure to cut back the Executive Office. One FPA offi- 
cial argued that the President was trying to prod agencies and depart- 

18 F.S.. Congress, House. Committee on Government Operations, "Reorganization Plan 
No. 1 of 1973. Hearings," before a subcommittee of the Committee on Government Opera- 
tions, House of Representatives, 93rd Congress, 1st sess., February 2G, 1973, p. 3. 



62 



33 

ments to rethink and restructure their administrative organizations. 
Others pointed to a longstanding antagonism between OMB and OEP 
and noted that a committee chaired by OMB director Roy Ash had 
recommended a restructuring of OEP. According to this argument, 
OMB had always seen OEP as a rival, so when the idea of reorganiz- 
ing government gained favor and OEP issued some reports embarrass- 
ing to the Administration, OMB seized the occasion and moved to 
revamp OEP. 

Whatever the reasons, current debate on different administrative 
arrangements should focus on several key questions. One policy matter 
is whether the lead coordinating agency should have operational re- 
sponsibility, and if so, how much. 

The staff found agreement that the lead agency is probably better 
off without responsibility for oil and natural disaster programs. FPA 
spokesmen and critics generally agree that reduction of natural dis- 
aster responsibilities has benefitted FPA. One official observed that 
OEP's work had always been characterized by a stop-and-go quality. 
People would begin a project only to be interrupted when some natural 
disaster would demand their attention. Now that FDAA has taken 
over the handling of natural disasters, the problem has been alleviated. 
Similarly, a consensus seemed to exist that oil matters had become so 
complex and vital that they were better handled separately. 

Whether the central coordinating agency should be free of all 
operational responsibility is a more controversial subject. Critics argue 
that first-hand exposure to emergencies and personal experience in 
handling them insure that planning preparedness, and coordination 
efforts remain realistic. They insist that cutting administrators and 
planners off from immediate contact with emergency conditions leads 
to an isolation that has a detrimental effect on efforts to make efficient, 
realistic preparations. 

A top FPA official admitted that he was not certain what structure 
would he most advantageous. He ended up suggesting that the best 
solution might be not a "restored OEP" or the present setup, but a 
hybrid structure — a centralized agency with operational responsibili- 
ties which stopped short of natural disasters and oil policies. 

Another issue centers on the importance of the specific location of 
the coordinating agency within the government 19 OEP, by virtue of its 
location in the Executive Office of the President, exercised consider- 
able "clout." The staff found universal agreement that FPA carries 
less political prestige and muscle than its predecessor. As a result, 
FPA requests elicit slower responses, involve more red tape, and, gen- 
erally, take a longer time. 

The diminished "clout" of FPA raises serious questions about the 
importance and effectiveness of its leadership role. Some argue that it 
is imperative that the Agency be moved from GSA and either be set up 

"An Arthur D. Little study on "Industrial Preparedness in an Arras Control Environ- 
ment." prepared in December 1974 for the Arms Control and Disarmament Agency 
(ACDA), also raised the issue of location: "It is possible to point out areas in the pre- 
paredness system where effort might be rewarded with improvement. One such area is 
the standby organization for industrial mobilization. The principal issue here appears 
to be the level at which the primary mobilization coordination responsibility is fixed 
within the Executive Branch. * * * The link with arms control • • * may not have 
been fully appreciated when the 1973 decision was made and its emerging significance 
suggests that a different disposition should at least be considered." 



63 



34 



by itself or be attached to the National Security Council, Domestic 
Council, or the Office of Management and Budget. This line of argu- 
ment is based on the view that the coordinating agency has to occupy 
a significant position to possess enough authority to command respect 
and to be effective. Prime location is important, if only to insure that 
the President is aware of the coordinating agency's services and makes 
use of them. Proponents of this view believe that under the present 
structure Executive decisionmakers are frequently unaware that FPA 
has information which would be of use to them. 

It seems clear that FPA does not play a major policy role in crisis 
situations. Frequently, when a project has needed to be organized 
quickly and political muscle has been required, the Office of Manage- 
ment and Budget has taken command of the situation. As an OMB 
official observed, "crisis direction was required, and it had to be out of 
the President's office." 

The issue is whether OMB is suited to its new role. Critics contend 
that it is not. They stress that while OMB has Executive clout, it does 
not have the expertise required to successfully handle emergencies. 
They argue that there is high pay-off in using people who have had 
experience in planning for and coping with emergency situations. 
Keliance on those with prior experience is particularly important in 
improving efficiency during the first seventy-two hours of the emer- 
gency. In the view of critics, OMB is ill-suited to its fire-fighting role : 
it cannot provide the expertise necessary to expedite the handling of 
emergencies. 

Another major policy question concerns the effectiveness of coordi- 
nation. Critics charge that present efforts are inefficient and frag- 
mented. A 1974 Arthur D. Little study lent credence to this view, find- 
ing that "officials familiar with the preparedness system feel concern 
over divisions of responsibility, possible gaps between agencies, and a 
lack of full coordination." The study concluded, "An effort to confirm 
these views and develop remedies for such deficiencies as are verified 
seems warranted." 20 

In its own investigation, the staff found particular concern over the 
uneven coordination between state and local agencies and the Federal 
bureaucracy. States apparently find it difficult to work with the re- 
organized Federal structure. They would prefer to deal with a single 
unified Federal agency capable of granting them lump sum grants. 
The present fragmented system — in which agencies have overlapping 
jurisdictions and coordination efforts prior to an emergency are dis- 
tinct from those following a disaster — frustrates and confuses them. 
States have problems identifying the source of needed funds, and they 
have trouble complying with the "strings" frequently attached to 
grants. The use of funds allocated by the Defense Civil Preparedness 
Agency seems to have been a subject of particular controversy. 

FPA officials acknowledge these problems. They were eager to im- 
prove coordination with state and local agencies. In addition, they 
(and FDAA officials) indicated that contact between FPxY and FDA A 
is minimal and that coordination between the two agencies is in need 
of improvement. 

Despite these problems, FPA representatives believe that the system 
works better than critics charge. Problems that have surfaced reflect 



20 Arthur D. Little, "Industrial Preparedness in an Arms Control Environment," p. 68. 



64 



35 



in large part the settling out of the new administrative apparatus, and 
generally, coordination within the Federal bureaucracy is effective. 
Difficulties are being worked out through administrative arrangements 
and informal agreements. 

Finally, in this time of government deficits and tight budgets, 
comparative budgetary figures will also have to be considered. When 
the Nixon Administration presented Reorganization Number 1, offi- 
cial spokesmen heralded savings of some $2 million, but none of the 
savings was to result from the restructuring of the emergency agen- 
cies. In fact, a high FPA official has suggested that the present decen- 
tralized set-up is more expensive to operate. If true, it is only natural 
to examine what advantages the new structure offers and to ask 
whether they warrant the additional expenditures. 

Planning 

An evaluation of planning efforts within the government seems wise 
in light of widespread skepticism about planning. Critics contend that 
the level of planning has been excessive in the past and that efforts 
that are undertaken in the future should be more realistic, emphasizing 
existing structures and resources rather than relying on contingency 
structures and plans. They view planning efforts as an academic exer- 
cise, an impractical activity conducted in a world of contingencies too 
often separated from more mundane realities. They argue that plan- 
ning is an expensive luxury that is hard to justify when all programs 
are being scrutinized for possible savings and other programs provide 
more concrete and visible results. 

Former OEP officials and current FPA spokesmen strongly defend 
the need for advance planning. In defining planning, they speak of the 
anticipation of potential crises and preparation of appropriate govern- 
mental responses, including the establishment of procedures, the per- 
fection of methodologies, the collection of important data, and the 
identification of skilled personnel. These officials argue that the com- 
plexity and increasing interdependence of the world and the concur- 
rent growth in the potential for and ramifications of devastating 
disasters make advance work absolutely essential. 

FPA officials expressed concern that the present administrative ap- 
paratus and appropriations process were biased against planning ef- 
forts. No single appropriations control point exists to insure that 
enough money has gone into planning. Individual committees of the 
Congress make independent decisions on each agency's request with- 
out any concern for the overall outcome. FPA cannot exert the 
political muscle that OEP could, and no one else has a big stake in 
contingency planning. Consequently, when agencies negotiate their 
budgetary requests and Congressional committees give them further 
examination, funds requested for planning efforts are particularly 
vulnerable. 

The ending of the delegate agency funding process was of particu- 
lar concern to FPA officials. Under this system the lead preparedness 
agency maintained control over funds, when it used to insure that 
vital planning efforts went ahead. According to FPA representatives, 
the existence of the fund gave the lead agency both latitude and lever- 
age, while also simplifying the accounting of expenditures in the 
emergency area. Congress eliminated the system, in part, because it 



65 



36 



made more difficult efforts to keep track of the exact sums each de- 
partment was spending on preparedness efforts. FPA officials did not 
recommend restoration of the delegate agency funding process, but 
insisted that some type of budgetary pool was necessary to insure con- 
tinuity of planning and to guarantee completion of any planning 
whose impact extends beyond a single department. 

FPA officials were more concerned about the future implications of 
the decreasing interest in preparedness planning than about the pres- 
ent results. They worried that the cumulative effort of the small incre- 
mental steps in which planning efforts were receiving less and less 
support would be extremely serious. They emphasized that certain 
types of planning were dynamic and in need of constant revision, and 
they expressed fears that this planning would become obsolescent and 
would deteriorate to a dangerous point. 

The staff believes that further investigation of these issues is war- 
ranted. In the face of an evident decline in planning efforts, the 
amount of planning the nation should support is an obvious area of 
inquiry. The problem is to find the elusive mean between excessive 
and inadequate planning. The staff believes that concerns expressed 
by FPA officials are legitimate, but that they^ust be coupled with 
a recognition that planning inevitably has diminishing return*. It 
does not seem wise to prepare elaborate plans for every possible con- 
tingency. Certain types of planning might be carried out in specific 
parts of the nation and then be applied elsewhere as required. Plan- 
ning may be most viable for crises of a limited nature, as a former 
OEP official suggested. Some thought is required to insure that plan- 
ning is conducted not just with an eye to maximizing efficiency, but 
also with an eye to confining actions to the restraints of the Constitu- 
tion and the law. Efforts must be made to make certain that advance 
planning is formulated to provide procedures for the protection of 
civil liberties and that all emergency preparations are in accordance 
with constitutional processes. It is essential to assess the impact of 
specific planning in a broader framework. For instance, plans for re- 
locating whole segments of the population in the event of a nuclear 
threat must be considered within the perspective of an overall policy 
of nuclear parity. Such plans might be viewed by an enemy as our 
preparation for a first strike and be escalatory in ways that were un- 
intended. At the same time, relocation plans may violate important 
civil liberties. 

The quality and efficiency of current planning efforts must be 
examined along with other questions, such as the extent to which 
affected agencies are involved in advance planning. It will be im- 
portant to judge how well officials are anticipating the diverse types 
of emergencies that might occur. War and natural disasters are the 
commonest but the near default of New York City suggests an entirely 
different realm of economic emergencies and raises the question 
whether other possible calamities have been anticipated. 

Any investigation should not neglect the critical importance of the 
lead organizational agency. The coordinating agency plays a key role, 
particularly in charting unexplored terrain, such as the possible 
dangers of world terrorism and peacetime nuclear emergencies. It 
seems wise to examine both the contention of FPA officials that the 



66 



37 



central agency should serve as a control point in the allocation of 
funds and the suggestion of others that the diminished political 
muscle of the FPA has materially hurt planning efforts. 

Any assessment of planning and preparedness efforts in the United 
States should give certain areas special scrutiny. In April 1973, the 
strategic and critical materials stockpile objectives were reduced by 
a quantity valued at more than $4 billion. The rationale for this abrupt 
change in policy is unclear. An investigation by GAO seems to be lead- 
ing to a reevaluation of stockpile assumptions, but it is essential that 
Congress insure that the nation's policies in this area are not subject 
to dramatic fluctuation or political whim. 

Another issue concerns Executive Reserves. Under this program, 
selected American citizens are assigned key governmental roles which 
they are to assume in an emergency. In effect, these officials constitute 
a type of "shadow government." Serious questions — such as the extent 
of the program, the type of individuals involved, the advisability of 
public disclosure, and the manner of activation of these reserves — 
suggest the need for further investigation. In December 1973, in testi- 
mony before the Senate Interior Subcommittee on Integrated Oil Op- 
erations, Senator Lee Metcalf expressed concern about the extent of 
industry representation in the Emergency Petroleum and Gas Admin- 
istration Executive Reserve. The staff of the Special Committee feels 
that the extent of industry control in all Executive Reserve programs 
merits investigation. An inquiry seems wise in view of the findings of 
the House Small Business Subcommittee on Energy and the Environ- 
ment that "politicalization" and "disregard for conflict of interest con- 
siderations" plague the Presidential Executive Interchange Program 
created by President Johnson in 1969. 

Another issue involves representation of the chief preparedness 
agency on the National Security Council. OEP was represented on 
that body, but the preparedness representative was removed in the 
1973 reorganization. The staff heard different views on this issue. A 
former OEP official felt that it would be difficult to make a compelling 
case for representation, since most of the items on the National Se- 
curity Council agenda are matters concerning the CIA and State and 
Defense Departments. An FPA official felt that the chief prepared- 
ness agency should naturally be represented on that group, but was 
under no illusion that membership would bring immediate influence. 

Civil Liberties 

Finally, there are a range of government programs which warrant 
investigation because they pose a potential threat to civil liberties. 
Emergency censorship demands more thorough scrutiny. In 1972, 
the House Government Operations Subcommittee on Foreign Opera- 
tions and Government Information held hearings on the "Wartime 
Information Security Program," but these hearings did not constitute 
an exhaustive inquiry. 

The maintenance of lists of people to be watched or to be detained 
in time of national emergency is another sensitive area. Of particular 
concern are contingency plans, developed by the Justice Department, 
for a domestic emergency. In an article by Harvard law professor 
Alan Dershowitz appearing in the March/April, 1973, Liberty, 
Richard Kliendienst, the Deputy Attorney General at that time, is 



67 



38 



quoted as saying : "We have careful plans ready to be put into effect 
in the event of any emergency requiring Federal troops." The Senate 
Select Committee on Intelligence Activities and the House Judiciary 
Subcommittee on Civil Liberties have begun investigations of these 
matters, but the Congress still awaits the results of these inquiries. 

Another matter of concern is the number of organizations which 
have been established in a dormant status to be activated upon the 
President's determination in a national emergency. Planned agencies, 
such as the Office of Defense Resources and the Office of Economic 
Stabilization, may require further study. 

Perhaps the operation most in need of scrutiny is the series of gov- 
ernment relocation centers operated under the FPA's "continuity of 
government" program. Recent articles by Richard P. Pollock in The 
Progressive 21 and the new Washington weekly, Newsworks? 2 have 
detailed the operations of Mount Weather and other relocation sites 
operated outside Washington, D.C. The staff is concerned about the 
lack of Congressional oversight and the absence of evidence that these 
facilities are being run in accordance with constitutional processes. 
If these programs are to continue, it is imperative that adequate safe- 
guards exist in the activation and operation of Mount Weather and 
other relocation sites. The Senate Judiciary Subcommittee on Consti- 
tutional Rights has begun to probe this area but has found it difficult 
to penetrate the veil of secrecy surrounding these programs. 

81 Richard P. Pollock, "The Mysterious Mountain," The Progressive, Madison, Wis., 
March 1976, pp. 12-16. 

» Richard P. Pollock "Flight 514 and the Secret of Mount Weather." Washington News 
works, Washington, D.C., February 12-18. 1976, pp. 7-8. 



Ill 

The National Emergencies Act (P.L. 94-412) 

1. Introduction of S. 3957. 93rd Congress. 

2. Text of S. 3957, 93rd Congress. 

3. Senate Report on S. 3957, 93rd Congress. 

4. Senate debate and adoption of S. 3957, 93rd Congress. 

5. Introduction of H.R. 16668, 93rd Congress. 

6. Text of H.R. 16668, 93rd Congress. 

7. Introduction of H.R. 3884. 94th Congress. 

8. Text of H.R. 3884, 94th Congress. 

9. House Report on H.R. 3884, 94th Congress. 

10. House debate and adoption of H.R. 3884, 94th Congress. 

11. Introduction of S. 977, 94th Congress. 

12. Text of S. 977. 94th Congress. 

13. Senate Report on H.R. 3884. 94th Congress. 

14. Senate debate and adoption of H.R. 3884. 94th Congress. 

15. Text of Public Law 94-412. The Xational Emergencies Act. 



Ill 

The National Emergencies Act (P.L. 94-412) 

1. Introduction of S. 3957. 93rd Congress. 

2. Text of S. 3957, 93rd Congress. 

3. Senate Report on S. 3957. 93rd Congress. 

4. Senate debate and adoption of S. 3957, 93rd Congress. 

5. Introduction of H.R. 16668, 93rd Congress. 

6. Text of H.R. 16668, 93rd Congress. 

7. Introduction of H.R. 3884, 94th Congress. 

8. Text of H.R. 3884. 94th Congress. 

9. House Report on H.R, 3884, 94th Congress. 

10. House debate and adoption of H.R. 3884, 94th Congress. 

11. Introduction of S. 977, 94th Congress. 

12. Text of S. 977, 94th Congress. 

13. Senate Report on H.R. 3884, 94th Congress. 

14. Senate debate and adoption of H.R. 3884. 94th Congress. 

15. Text of Public Law 04— 11l ; . The National Emergencies Act. 



INTRODUCTION OF S. 3957. 93rd CONGRESS 

[Congressional Record — v. 120. Aug. 22. 1974 — pp. S15784-S15794] 

A National Emergencies Act 

Mr. Church. Mr. President, in his address to the joint session of 
Congress on Monday. August 12. President Gerald Ford said that "we 
have work to do." President Ford addressed this imperative to the 
Congress. 

On behalf of the eight members of the Special Committee on Na- 
tional Emergencies and Delegated Emergency Powers. Senator 
Mathias. the cochairman of this committee, and I introduce today a 
National Emergencies Act. In the view of the Special Committee, this 
proposed legislation is urgent work for the Congress and the Execu- 
tive branch. The Special Committee strongly recommends that this leg- 
islation be acted upon, if at all possible, before the Congress adjourns. 

For over a year and a half, the Special Committee has been engaged 
in a study of the effects of emergency rule upon the constitutional 
government of the United States. Most Americans are unaware that 
they have been living under a continuous state of national emergency 
since 1933. In fact, there are four states of national emergency now in 
force : 

The national emergency declared by President Roosevelt on March 6. 
1933. to meet the crisis of the depression has still not been formally 
terminated. 

The December 16. 1950, national emergency declared by President 
Truman in order to better prosecute the Korea War is still in force. 

The national emergency declared by President Nixon on March 23. 

1970, to handle the Post Office strike is still in force. 

The national emergency declared by President Nixon on August 15, 

1971. to carry out currency restrictions and to enforce foreign economic 
controls still remains in force. 

These four states of national emergency confer upon the President 
the power contained in over 470 emergency statutes to control the lives 
of all American citizens in a host of particular ways. It is important 
to understand that these laws affect every area of American life. 

It is fortunate that at this time, when the fears and tensions of the 
Cold War are giving way to relative peace, and detente is now national 
policy. Congress has had the opportunity to assess the statutes — some 
470 significant provisions become known as emergency powers legisla- 
tion. Emergency powers make up a relatively small but important 
body of statutes out of the total of thousands that have been passed 
or recodified since 1933. But emergency powers laws are of such im- 
portance to civil liberties, to the operation of domestic and foreign 
commerce, and the normal functioning of the U.S. Government, that 
Congress should delay no longer in regularizing their use. 

(71) 



66-474 O - 76 



72 

A number of conclusions can be drawn from the Special Committee's 
study and analysis of emergency powers laws now in effect, Congress 
has, in large measure, permitted the Executive branch to draft and thus 
to "make the laws." This has occurred despite the constitutional re- 
sponsibility conferred on Congress by article I, section 8 of the Consti- 
tution which states that it is Congress that "makes all Laws." 

Most of the 470 statutes pertaining to emergency powers were passed 
in times of real or perceived crisis. Bills drafted in the Executive 
branch were sent to Congress by the President and, in most cases, were 
approved with only the most perfunctory Committee review. Virtually 
no consideration was given to their effect on civil liberties or theii 
impact on the constitutional balance between the Executive and Legis- 
lative branches of the Government. For example, the economic meas- 
ures that were passed in 1933 pursuant to the proclamation of March 5, 
1933, by President Roosevelt, asserting that a state of national emer- 
gency existed, were enacted with the most unseemly haste. There was 
a total of only eight hours of debate in both houses. There were no 
committee reports ; indeed, only one copy of the bill was available on 
the floor. 

This pattern of hurried and inadequate consideration was repeated 
during World War II when another group of laws with far-reaching 
implications was passed. It was repeated once more during the Korean 
War and, again, in most recent memory, during the debate on the 
Tonkin Gulf Resolution, passed on August 6, 1964. 

On occasions, legislative history shows that during the limited de- 
bates that did take place, a few, out very few, objections were raised 
by Senators and Congressmen expressing concern about the lack of 
provision for Congressional oversight, as well as the absence of any 
terminal date for the authorities granted. Their speeches raised legiti- 
mate doubts about the wisdom of giving such open-ended authority 
to the President, with no procedural means provided to withdraw that 
authority once the emergency had passed. 

For example, one of the very first of these laws, enacted in 1933, 
was the Emergency Banking Act based upon section 5 (b) of the Trad- 
ing With the Enemy Act of 1917. This act gave to President Roosevelt, 
with the full approval of Congress, the power to control major aspects 
of the economy, an authority which had formerly been reserved to the 
Congress. A portion of that act, still in force, is quoted here to illus- 
trate the kind of open-ended authority Congress has typically given 
to the President during the past 40 years : 

(b) (1) During the time of war or during any other period of national emer- 
gency declared by the President, the President may, through any agency that 
he may designate, or otherwise, and under such rules and regulations as he may 
prescribe, by means of instructions, licenses, or otherwise — 

(A) investigate, regulate, or prohibit, any transaction in foreign exchange, 
transfers of credit or payments between, by, through, or to any banking institu- 
tion, and the importing, exporting, hoarding, melting, or ear-marking of gold or 
silver coin or bullion, currency or securities, and 

(B) investigate, regulate, direct and compel, nullify, void, prevent or pro- 
hibit, any acquisition, holding, withholding, use, transfer, withdrawal, trans- 
portation, importation or exportation of, or dealing in, or exercising any right, 
power, or privilege with respect to, or transactions involving, any property in 
which any foreign country or a national thereof has any interest, 

by any person, or with respect to any property, subject to the jurisdiction of the 
United States ; and any property or interest of any foreign country or national 



73 

thereof shall vest, when, as, and upon the terms, directed by the President, in such 
agency or person as may be designated from time to time by the President, and 
upon such terms and conditions as the President may prescribe such interest or 
property shall be held, used, administered, liquidated, sold, or otherwise dealt 
with in the interest of and for the benefit of the United States, and such designated 
agency or person may perform any and all acts incident to the accomplishment or 
furtherance of these purposes ; and the President shall, in the manner herein- 
above provided, require any person to keep a full record of, and to furnish under 
oath, in the form of reports or otherwise, complete information relative to any 
act or transaction referred to in this subdivision either before, during, or after 
the completion thereof, or relative to any interest in foreign property, or relative 
to any property in which any foreign country or any national thereof has or has 
had any interest, or as may be otherwise necessary to enforce the provisions of 
this subdivision, and in any case in which a report could be required, the Presi- 
dent may, in the manner hereinabove provided, require the production, or if nec- 
essary to the national security or defense, the seizure, of any books of account, 
records, contracts, letters, memoranda, or other papers, in the custody or control 
of such person ; and the President may, in the manner hereinabove provided, 
take other and farther measures not inconsistent herewith for the enforcement 
of this subdivision. 

(2) Any payment, conveyance, transfer, assignment, or delivery of property or 
interest therein, made to or for the account of the United States, or as otherwise 
directed, pursuant to this subdivision or any rule, regulation, instruction, or direc- 
tion issued hereunder shall to the extent thereof be a full acquittance and dis- 
charge for all purposes of the obligation of the person making the same ; and no 
person shall be held liable in any court for or in respect to anything done or 
omitted in good faith in connection with the administration of, or in pursuance 
of and in reliance on, this subdivision, or any rule, regulation, instruction, or 
direction issued hereunder. 

The repeal of almost all of the Emergency Detention Act of 1950 was 
a constructive and necessary step, but the following provision remains : 

18 U.S.C. 1383. Restrictions in military areas and zones. 

Whoever, contrary to the restrictions applicable thereto, enters, remains in, 
leaves, or commits any act in any military area or military zone prescribed under 
the authority of an Executive order of the President, by the Secretary of the 
Army, or by any military commander designated by the Secretary of the Army, 
shall, if it appears that he knew or should have known of the existence and extent 
of the restrictions or order and that his act was in violation thereof, be fined not 
more than $5,000 or imprisoned not more than one year, or both. 

On its face, 18 U.S.C. 1383 does not appear to be an emergency power. 
A similar law, the Alien Detention Act, was used as the basis for intern- 
ment of Japanese Americans in World War II. Although it seems to 
be cast as a permanent power, the legislative history of the section 
shows that the statute was intended as a World War II emergency 
power only, and was not intended to apply in "normal" peacetime cir- 
cumstances. Three years ago, the Emergency Detention Act was re- 
pealed, yet 18 U.S.C. 1383 has almost the same effect. In the view of the 
Special Committee, this provision should be repealed. 

What these examples suggest, and what the magnitude of emergency 
powers affirm, is that most of these laws do not provide for Congres- 
sional oversight or termination. There are two reasons which can be 
adduced as to why this is so. First, few, if any, foresaw that the tem- 
porary states of emergency declared in 1933, 1939, 1941, 1950, 1970, and 
1971, would become what are now regarded collectively as virtually 
permanent states of emergency — the 1939 and 1941 emergencies were 
terminated in 1952. Forty years can, in no way, be defined as a tempo- 
rary emergency. Second, the various administrations which drafted 
these laws were uninterested in providing for Congressional review, 



74 

oversight, or termination of these delegated powers which gave to the 
President such wide-ranging authority. 

The climate of crisis which sped these emergency laws through Con- 
_ ss is well exemplified by the language in President Truman's 1950 
proclamation : 

Whereas recent events in Korea and elsewhere constitute a grave threat to the 
peace of the world and imperil the efforts of this country and those of the United 
Nations to prevent aggression and armed conflict : and 

Whereas world conquest by communist imperialism is the goal of the forces of 
aggression that have been loosed upon the world ; and 

Whereas, if the goal of communist imperialism were to be achieved, the people 
of this country would no longer enjoy the full and rich life they have with God's 
help built for themselves and their children; they would no longer enjoy the 
blessings of the freedom of worshipping as they severally choose, the freedom of 
reading and listening to what they choose, the right of free speech, including the 
right to criticize their Government, the right to choose those who conduct their 
Government, the right to engage freely in collective bargaining, the right to 
engage freely in their own business enterprises, and the many other freedoms and 
rights which are a part of our way of life ; and 

Whereas, the increasing menace of the forces of communist aggression requires 
that the national defense of the United States be strengthened as speedily as 
possible : 

Xow. therefore, I, Harry S Truman. President of the United States of America, 
do proclaim the existence of a national emergency, which requires that the mili- 
tary, naval, air. and civilian defenses of this country be strengthened as speedily 
as possible to the end that we may be able to repel any and all threats against 
our national security and to fulfill our responsibilities in the efforts being made 
through the United Nations and otherwise to bring about lasting peace. 

I summon all citizens to make a united effort for the security and well-being 
of our beloved country and to place its needs foremost in thought and action that 
the full moral and material strength of the Nation may be readied for the dangers 
which threaten us. 

I summon our farmers, our workers in industry, and our businessmen to make 
a mighty production effort to meet the defense requirements of the Nation and 
to this end to eliminate all waste and inefficiency and to subordinate all lesser 
interests to the common good. 

I summon every person and every community to make, with a spirit of neigh- 
borliness. whatever sacrifices are necessary for the welfare of the Nation. 

I summon all State and local leaders and officials to cooperate fully with the 
military and civilian defense agencies of the United States in the national 
defense program. 

I summon all citizens to be loyal to the principles upon which our Nation is 
founded, to keep faith with our friends and allies, and to be firm in our devotion 
to the peaceful purposes for which the United Nations was founded. 

I am confident that we will meet the dangers that confront us with courage 
and determination, strong in the faith that we can thereby "secure the Blessings 
of Liberty to ourselves and our Posterity.'" 

In Witness Whereof. I have hereunto set my hand and caused the Seal of the 
United States of America to be affixed. 

Done at the City of Washington this 16th day of December (10 :20 a.m. i in the 
year of our Lord nineteen hundred and fifty, and of the Independence of the 
United States of America the one hundred and seventy-fifth. 

The pervasive sense of crisis so evident in Truman's proclamation 
has fortunately eased. The legislative shortcomings contained in these 
many emergency laws can now be corrected on the basis of a rational 
review and revised procedures for the future. 

In the view of the Special Committee, an emergency situation does 
not now exist. Congress, therefore, should act now to terminate the 
states of national emergencv presently in effect. 

At the same time, the Special Committee is of the view that the Presi- 
dent must lie left free to deal effectivelv in the case of future emer- 



75 

gencies. It is reasonable to keep a body of laws in readiness for the 
President's use. whenever a new national emergency occurs. That por- 
tion of the concurring opinion given by Justice Jackson in the Youngs- 
town Steel case with regard to emergency powers, provides sound 
guidelines for the maintenance of such a body of emergency laws kept 
in readiness. Justice Jackson, supporting the majority opinion that 
the "President's power must stem either from an act of Congress or 
from the Constitution itself" wrote : 

The appeal, however, that we declare the existence of inherent powers ex 
necessitate to meet an emergency asks us to do what many think would be wise. 
although it is something the forefathers omitted. They knew what emergencies 
were, knew the pressures they engendered for authoritative action, knew, too, 
how they afford a ready pretext for usurpation. We may also suspect that they 
suspected that emergency powers would tend to kindle emergencies. Aside from 
suspension of the privilege of the writ of habeas corpus in time of rebelli 
invasion, when the public safety may require it. they made no express provision 
for exercise of extraordinary authority because of a crisis. I do not think we 
rightfully may so amend their work. and. if we could. I am not convinced it 
would be wise to do so. although many modern nations have forthrightly recog- 
nized that war and economic crises may upset the normal balance between 
liberty and authority. Their experience with emergency powers may not be ir- 
relevant to the argument here that we should say that the Executive, of his 
own volition, can invest himself with undefined emergency powers. 

Germany, after the First World War. framed the Weimar Constitution, de- 
signed to secure her liberties in the Western tradition. However, the President 
of the Republic, without concurrence of the Reichstag, was empowered tem- 
porarily to suspend any or all individual rights if public safety and order were 
seriously disturbed or endangered. This proved a temptation to every govern- 
ment, whatever its shade of opinion, and in 13 years suspension of rights was 
invoked on more than 250 occasions. Finally. Hitler persuaded President von 
Hiudenburg to suspend all such rights, and they were never restored. 

The French Republic provided for a very different kind of emergency govern- 
ment known as the "state of seige." It differed from the German emergency 
dictatorship particularly in that emergency powers could not be assumed at will 
by the Executive but could only be granted as a parliamentary measure. And 
it did not. as in Germany, result in a suspension or abrogation of law but was 
a legal institution governed by special legal rules and terminable by parlia- 
mentary authority. 

Great Britain also lias fought both World Wars under a sort of temporary 
dictatorship created by legislation. As Parliament is not bound by written con- 
stitutional limitations, it established a crisis government simply by delegation 
to its Ministers of a larger measure than usual of its own unlimited power, 
which is exercised under its supervision by Ministers whom it may dismiss. 
This has been called the "high-water mark in the voluntary surrender of liberty." 
but. as Churchill put it. "Parliament stands custodian of these surrendered lib- 
erties, and its most sacred duty will be to restore them in their fullness when 
victory has crowned our exertions and our perseverance." Thus, parliamentary 
controls made emergency powers compatible with freedom. 

This contemporary foreign experience may be inconclusive as to the wisdom 
of lodging emergency powers somewhere in a modern government. But it suggests 
that emergency powers are consistent with free government only when their 
control is lodged elsewhere than in the Executive who exercises them. That is 
the safeguard that would be nullified by our adoption of the "inherent powers*' 
formula. Xothinjr in my experience convinces me that such risks are warranted 
by any real necessity, although such powers would, of course, be an Executive 
convenience. 

In the practical working of our Government we already have evolved a tech- 
nique within the framework of the Constitution by which normal Executive 
powers may be considerably expanded to meet an emergency. Congress may and 
has granted extraordinary authorities which lie dormant in normal times bur 
may be called into play by the Executive in war or upon proclamation of a 
national emergency. In 1939. upon Congressional request, the Attorney General 
listed ninety-nine such separate statutory grants by Congress of emergency or 



76 

has\™ e nT^ f i™ eaSe ' exiJedition and s^K with which Congress can grant and 
has granted large emergency powers, certainly ample to embrace this or sit T 
am quite unimpressed with the argument that we^houinffirm possesS'of 
them without statute. Such power either has no beginning or ifhas no ?nd If 
it exists, it need submit to no legal restraint. I am not alarmed than would 
SireXn 8 StmightWay int0 ^tatorship, but it is at least a step in that wrong 

But I have no illusion that any decision by this Court can keep power in the 
hands of Congress if it is not wise and timely in meeting its problems. A crisis 
that challenges the President equally, or perhaps primarily, challenges Con- 
gress. If not good law, there was worldly wisdom in the maxim attributed to 
Napoleon that "the tools belong to the man who can use them." We may say 
that power to legislate for emergencies belongs in the hands of Congress, but 
only Congress itself can prevent power from slipping through its fingers. 

The essence of our free Government is "leave to live by no man's leave, under- 
neath the law"— to be governed by those impersonal forces which we call law. 
Our Government is fashioned to fulfill this concept so far as humanly possible. 
The Executive, except for recommendation and veto, has no legislative power. The 
Executive action we have here originates in the individual will of the President 
and represents an exercise of authority without law. No one, perhaps not even 
the President, knows the limits of the power he may seek to exert in this instance 
and the parties affected cannot learn the limit of their rights. We do not know 
today what pow r ers over labor or property would be claimed to flow from Gov- 
ernment possession if we should legalize it, what rights to compensation would 
be claimed or recognized, or on what contingency it would end. With all its de- 
fects, delays and inconveniences, men have discovered no technique for long 
preserving free government except that the Executive be under the law, and that 
the law be made by parliamentary deliberations. 

Such institutions may be destined to pass away. But it is the duty of the Court 
to be last, not first, to give them up. 

Within the guidelines so profoundly expressed in the Youngstown 
case, and against the background of the last 40 years, the Special Com- 
mittee has drawn up the proposed legislation we introduce today. The 
Special Committee has done so by working in close cooperation with 
all of the standing committees of the Senate and all departments, com- 
missions, and agencies of the Executive branch. 

I might say, Mr. President, that I have enjoyed the close cooperation 
of my fellow chairman of this unique committee. It is the only bi- 
partisan committee in the Congress, consisting of four Republican and 
four Democratic members. My cochairman, Senator Mathias, has not 
only worked diligently in the drafting of this legislation but he has 
made the work of the Committee completely bipartisan in every way. 
We feel that the bill we are introducing today is not an expression of 
any party position but is a matter of equal concern to both parties in- 
terested in the restoration of a proper balance in our constitutional sys- 
tem. For that reason, it was possible for the members of the Committee 
to reach unanimous agreement. 

I also wish to say that we have enjoyed the support of both the 
Democratic and Republican leaders of the Senate, and they, too, have 
indicated their endorsement of the bill we introduce today. 

Finally, and perhaps most importantly, Senator Mathias and I met 
with the* President this morning. We discussed with him the bill that 
we are todav introducing. Tie was most interested, and indicated that 



77 

he favored the objective we sought and that his administration would 
be prepared to cooperate with us in bringing this long period of emer- 
gency government to an end so that the processes of the constitutional 
system could be returned to normal. 

I take great heart from the encouragement we received today at the 
White House. 

I think it is now possible for us to achieve a purpose that will well 
serve the country. It looks as though the work of this Committee will be 
crowned with success. 

I express my personal gratitude to the distinguished Senator from 
Maryland (Mr. Mathias) for the tremendous help he has been and 
support he has given to the effort through the last 18 months. 

The proposed National Emergencies Act contains four main sec- 
tions. The first section would terminate the four existing declared 
emergencies. The date upon which the termination takes effect would 
be nine months after the date of enactment, This nine month grace 
period has been included to provide sufficient time for standing com- 
mittees and Executive branch departments and agencies to determine 
which of the emergency statutes should be retained in the form of 
permanent law. This may be necessary in a few areas such as foreign 
monetary control where, over the years, the use of emergency power 
has become everyday governmental practice. This nine month grace 
period would permit the legislative committees and Executive depart- 
ments and agencies to consider permanent legislation in the normal 
legislative manner. All of the committees and all of the departments 
and agencies are aware of the problem areas that affect their respective 
jurisdictions and are already at work devising legislative solutions. 

The next section would provide a procedure to govern the handling 
of future national emergencies. The President, by proclamation, would 
declare the existence of a state of national emergency. His proclama- 
tion would be made public and would be published immediately in 
the Federal Register. The President would specify his reasons for 
declaring the emergency and the statutory powers he intended to in- 
voke. The Congress would have six months to affirm or reject the Presi- 
dent's use of these powers. If the Congress did not act, the declared 
emergency would lapse after six months. States of national emergency 
could be extended by six-month periods, but each extension would re- 
quire an affirmative act of the Congress. 

The third section would require an accounting of all significant 
actions taken by the President pursuant to emergency powers invoked 
during a declared state of national emergency. 

The final section is a list of statutes to be repealed. These statutes 
have been agreed upon by the standing committees and the executive 
branch departments and agencies as obsolete, and they should be 
stricken from the books. 

The Special Committee has, on its own initiative, added one statute 
to this list which the Special Committee believes poses such a serious 
threat to civil liberties that it should be repealed ; 18 U.S.C. 1383 which 
gives the President, the Secretary of the Army or any general the 
authority to declare any part, or even all, of the United States a mili- 
tary zone, within which any act he so designates may be punishable 
as a crime. This provision is similar to the Alien Detention Act under 



78 

which Japanese Americans were interned during World War II. It 
was repealed in 1970. In view of the Special Committee, there is no 
valid reason to keep such a statute on the books. 

President Ford appealed to the Congress to work with him to heal 
the wounds that have developed during the past decade or more. The 
record of cooperation between the Legislative and Executive branches 
during the Committee's efforts to work out the problem of how to pro- 
vide for expeditious action during times of war or severe crisis, and 
yet do so under a constitutional framework, has been exemplary. Both 
branches have worked at the task with openness and a real sense of 
united purpose. The members of the Special Committee are proud to 
be able to point to this final example of cooperation between the 
branches. 

We have had the support of several Secretaries of Defense and the 
direct assistance of three Attorneys General, particularly from former 
Attorney General Richardson and the present Attorney General 
Saxbe. Since he took over the Justice Department, Attorney General 
Saxbe has fully supported the purposes of the Special Committee and 
has contributed in significant ways to the legislation which is proposed 
today. 

The prodigious research required to bring together the statutes and 
Executive orders concerned with war or national emergency could 
not have been achieved without the help of all the Executive depart- 
ments and agencies. Our colleagues in the Senate should know that 
without the assistance of the Air Force and its LITE computer sys- 
tem, it would have been almost impossible to identify and compile all 
of the statutes that are triggered by a state of national emergency. We 
are especially grateful for the assistance rendered by the staff of the 
Federal Register 1 whose vitally important but largely unsung work 
should receive far more attention. The Special Committee owes a spe- 
cial debt to the legislative reference service, particularly the American 
Law Division of the Library of Congress, and to many of this country's 
most distinguished political scientists and constitutional lawyers who 
have given generously of their time to assist the Committee in its diffi- 
cult task. 

This proposed legislation also reflects the advice of former Attor- 
neys General and other high officials who had occasion to use the 
awesome powers contained in the emergene}* statutes. 

The Constitution and the Bill of Rights represent our historic en- 
deavor to restrain the power of government for the benefit of all our 
citizens. In the nearly 200-year history of the American Republic, the 
United States has grown huge. She is today the mightiest nation on 
earth. But her glory rests not on her prowess; it rests on the freedom 
that still endures. 

Reflecting on the erosion of freedom brought on by recurrent emer- 
gency, James Madison observed : 

Those truths are well established. They are read in every page which records 
the progression from a less arbitrary to a more arbitrary government, or the 
transition from a popular government to an aristoeacy or a monarchy. 

It is with the purpose of strengthening open constitutional processes 
that we introduce the National Emergencies Act today. I urge my col- 
leagues in the Senate to support this legislation and to make it the law 
of the land before the end of this session. 



79 

Mr. President, I send the bill to the desk and ask unanimous consent 
that it be referred to the Government Operations Committee of the 
Senate. 

The Presiding Officer (Mr. Taft). Without objection, it is so 
ordered. 

Mr. Church. Mr. President, I ask unanimous consent that the text 
of the bill and the text of an interim report by the Special Commit- 
tee on Xational Emergencies and Delegated Emergency Powers in 
support of a recommended Xational Emergencies Act be printed in 
the Record following the remarks I have made and the remarks of the 
cochairman. Senator Mathias, who will now take the floor. 

The Presiding Officer. Without objection, it is so ordered. 

Mr. Mathias. Mr. President, the distinguished Senator from Idaho, 
my colleague as cochairman of the Special Committee on Xational 
Emergencies, has spoken of the bipartisan nature of that Committee. 
I should like to point out that the reason why the Committee has this 
unique bipartisan character is that the Senator from Idaho made it 
possible. As the member of the Majority who had taken the lead on 
his side of the aisle, he might well have insisted on being the partisan 
chairman of a partisan committee. He did not so insist. In fact, 
throughout the deliberations of our committee, on the contrary, he 
has insisted that this should be a bipartisan effort. He has been fair, 
considerate and constructive. I have valued very much our association 
in working together on this bill. 

It is characteristic of him that he has insisted upon sharing not only 
the responsibility and the work, but also whatever rewards there are. 

The Senator from Idaho has properly acknowledged the able help 
that the Committee has had from outside sources, and I want to join 
him in the thanks he has already rendered. We particularly wish to 
thank those officials in the Executive branch who have been extraordi- 
narily helpful to our work so that we can say that the bill we have 
now introduced is not just the product of the thinking of a committee 
of the Senate, but it also reflects, in a very real way. the advice and 
counsel, and information and knowledge we have obtained from the 
Executive branch on this problem of emergency Government, which is 
of common interest to all branches of Government. 

As the Senator from Idaho has said, we are irrateful for the help of 
several Attorneys General — Attornev General Kleindienst, Attorney 
General Richardson, and Attorney General Saxbe. But we also have 
a particular debt to several Secretaries of Defense who showed a 
remarkable interest in this subject and whose department, curiously 
enough, was the repository of more information on this subject than 
any other single source. Secretary of Defense Melvin Laird was 
extraordinarily interested and cooperative, as was his successor. Secre- 
tary of Defense Elliot Eichardson and the cooperation has continued 
under Secretary Schlesinger and his able legal staff. 

So this bill is not one which reflects only the viewpoint of Congress. 
It is a bill which we have consciously designed to meet the needs of the 
Executive branch. It is a bill which I think expresses a common desire 
on the part of all of the branches of Government to return to a condi- 
tion of government in which we are guided, day by day. in normal 
times and in times of crisis by constitutional procedures. 



80 

It was, of course, particularly gratifying to have an opportunity 
to discuss this measure with the President of the United States today 
prior to the introduction of the bill. I was very pleased, because it was 
concrete evidence of the fact that when the President came before the 
joint session of Congress a week ago and said that his administration 
was going to be an administration of communication, conciliation, 
cooperation, and compromise, he was not just making a speech for the 
momentary benefit of Congress and the public, but that he was stating 
a long-term policy which he is now already carrying out. I think this 
is an extremely good omen for the future. 

The President, as we discussed the bill, was very quick to recognize 
one salient principal of the bill: that this bill will not remove any 
useful emergency power which Congress has heretofore delegated to 
the Executive branch, with the exception of those particular obsolete 
statutes which have been agreed upon jointly by both the standing 
committees and the pertinent department or agency of the executive 
branch. With the exception already noted and the group of obsolete 
statutes jointly agreed upon, no statutes are proposed to be repealed. 
While the statutes would go into a state of dormancy when the termina- 
tion of the national emergencies takes effect, these emergency powers 
are available to be used upon proclamation of need by the President 
to meet any future emergency. 

The President was very quick to recognize that this is the case : that 
we are not proposing to diminish any proper powers of the President, 
or to invade the Executive prerogative. What we are proposing is to 
terminate the states of national emergency which have existed without 
cease for 40 years — far too long — and we are proposing to substitute 
for the haphazard and potentially dangerous procedures of the past, 
regular and orderly constitutional processes by which Presidents in 
the future may summon up all the powers which might be necessary 
to meet crises and emergencies ; and Ave are further providing means 
of oversight and that such powers may then revert to Congress when 
the crisis or the emergency is over. 

In doing all of this, I think we recognize that those of us who have 
been elected to public office or appointed to positions of public trust 
have a special duty to protect the Constitution and the liberty of all 
citizens. The momentous march of events of the past four decades has 
weakened our constitutional processes and our liberty is now less 
secure. It is clear in looking back over 40 years that the guardians of 
the Constitution have not been as vigilant as the times required. The 
heavy toll of three long bloody and costly wars, a catastrophic 
economic depression and the fears and tension that marked the nuclear 
age and its diplomatic twin, the Cold War, has caused serious imbal- 
ances in our system of open democratic government. 

We, in the Congress, are witness to the destructive processes of war. 
crises and emergencies. It is clear that we in the Congress, through 
neglect and lack of foresight and understanding, have contributed 
measurably to the weakening of constitutional government. But Ave 
in the Congress have the means to take the steps necessary to strength- 
en the constitutional processes that give purpose and substance to our 
liberties. 

The Constitution assigns legislative responsibility solely to the 
Congress. Yet, for the last 40 years in most of the important areas of 



81 

public policy, many laws were conceived and actually written by the 
Executive branch. As a consequence, the Congress, in far too many 
instances, exercises only a limited modifying role, and in a few extreme 
cases exercises a kind of reverse veto by enacting amendments which 
occasionally negate Executive lawmaking initiatives. Contrary to the 
authority delegated by the Constitution, the lawmaking roles of the 
Congress and the Executive have been reversed. 

The effects of this failure by the Congress to make the law in the full 
sense intended by the founding fathers has in part contributed to the 
national disasters of our time. 

Yet this neglect has not yet resulted in the stifling of our freedoms, 
although the warnings are many that individual liberty has been in 
danger. It is not a very large step from a small illegal police force to 
widespread abuse by an effective, efficient instrument of suppression. It 
is not a very large step from the relatively small scale illegal break-ins, 
buggings, mail covers, procurement of private records and burglaries 
to the abuses of an authoritarian police state. It is very evident that 
the genuine needs of our national security, have been perverted by a 
process of unreviewable actions taken under the guise of national se- 
curity or some similar vague incantation justifying arbitrary action 
untested by the light of reason or the open processes of constitutional 
government. 

Our founding fathers consciously placed in our Constitution the 
means to determine the real needs of the republic and laid down meth- 
ods to provide for genuine national security. They also prescribed tests 
by which to reject spurious claims of national security which, in truth, 
have proven to be little more than cloaks for arbitrary rule. Two hun- 
dred years ago the authors of the Constitution sought to frame proc- 
esses by which power could be used effectively for all of the people of 
the Nation. They also sought to prevent power from falling into the 
hands of a few to the detriment of the majority of the people. 

Constitutional processes, in my view, means the open, careful and ra- 
tional husbanding of the Nation's power. It is often said that power 
corrupts, but in my view, power can be used for good or for ill. Power 
used bv men of good will in accord with the Constitution does not cor- 
rupt. But power used by willful men outside of constitutional authority 
can be corrupted, and as recent events have shown, when that happens, 
the Nation suffers. 

The National Emergencies Act introduced here toda}^ has been writ- 
ten and conceived by Members of the Senate using the full resources 
of our constitutional processes. Against the tide of accepted practice 
created by the events of recent years, and through the rigorous process 
of hearings, study, and debate, we have sought to restore the legislative 
structure to its original constitutional dimension to provide for effec- 
tive government during times of war or severe crisis. We have also 
sought to assure that each of the branches can use its respective powers, 
and carry out its assigned responsibilities under the Constitution, in 
order to contribute to a common purpose of national security. 

The rolls of history are filled with the stories of the fall of democra- 
cies because of long wars or sustained crises. The fall of the Weimar 
Republic and the rise of Hitler is a memory many of us share. We 
seek to prevent the possibility of a repetition of that tragic chapter 
from world history in the United States. In my view, our Constitution 



82 

provides the best means to remain a free people, but we in the Congress 
must meet our responsibilities to make the law if that hope is to be a 
lasting reality. 

Over a year ago I went to see the late former Chief Justice Earl 
Warren to ask his views about the philosophical questions and theo- 
retical problems that crisis governments pose to our constitutional sys- 
tem and the actual effects that 40 continuous years of national emer- 
gency has had on the Government of the United States. I do not think it 
would be a violation of his confidence if I shared the benefit of his 
views with the Senate. The former Chief Justice recalled that when he 
was attorney general of California during World War II, he played 
a significant role in the detention of Americans of Japanese ancestry. 
He explained that the deteution of Japanese Americans was in large 
measure due to irrational fears generated by the pressures of World 
War II. 

He reflected that this incident showed that unless there were firm 
statutory guidelines a crisis atmosphere can act to abridge constitu- 
tional rights and processes under the exigencies of the moment, "needs 
of the state," or the so-called demands of "national security." He 
told me that he realized that his actions during World War II, which 
had seemed necessary at the time, were in retrospect harmful to 
the American constitutional system. He said that he learned from his 
experience, and he went on to say that as Chief Justice of the Supreme 
Court, he had tried in every way possible to strengthen constitutional 
processes and particularly to protect the rights of all citizens. In that 
conversation we discussed the importance of the Youngstown Steel 
case, particularly the powerful remarks of Justice Jackson, which in 
Chief Justice Warren's view had most thoughtfully addressed the 
problem that extraordinary crisis situations such as war or severe 
national depression pose for constitutional government. In essence, he 
believed that Justice Jackson's views were a forceful and convincing 
definition of constitutional responsibility. Justice Jackson's opinion 
stressed that each branch has its responsibilities, and if each branch 
fully meets its responsibilities, there would be no legal doubts con- 
cerning who should "make the law" and how the laws should be 
executed. 

Chief Justice Warren said that while the Constitution provides that 
only Congress can make the law, the legislature has the obligation 
through enacting statutes to provide firm policy guidelines for the 
Executive branch. The former Chief Justice agreed with Justice Jack- 
son's view that where there are statutory guidelines, a President is 
obliged to follow the precepts contained in the laws passed by the 
Congress. Inherent powers problems arise and the other branches act, 
he said, largely when Congress fails to act definitively, when it fails to 
make needed laws and when there is a necessity for legislative action 
and Congress fails to meet the challenge. 

We then discussed the outline and the constitutional concept that lay 
behind the legislative proposal to meet future national emergencies 
now before the Senate. Chief Justice Warren thought it was, in prin- 
ciple, a sound solution to what he recognized as a serious threat to 
constitutional government. 

The Special Committee is of the view that the findings of the 
Youngstown Steel case so eloquently expressed by Justice Jackson, and 



83 

as confirmed in the views of the late Chief Justice Earl Warren con- 
tinue to be sound. In this legislative proposal that we now recommend 
to the Congress, after months of working in cooperation with the 
Executive branch, we believe we have met our constitutional responsi- 
bility "to make the law." 

The proposed legislation now before the Senate was written in ac- 
cordance with our Committee mandate : TTe have laid out statutory 
guidelines which we believe will provide the Executive with the flexi- 
bility and the effective power to meet any foreseeable future emer- 
gency, but to do so within established constitutional guidelines and 
constitutional procedures. 

There were other possible courses of action to end the state of emer- 
gencies. The Special Committee could have recommended an outright 
repeal of the existing emergencies. This, in fact, was the initial incli- 
nation of some members of the Special Committee. But after a series 
of hearings, and after the staff had brought together an analysis of 
the 470 statutes triggered by a state of emergency, and when the 
members of the Special Committee had a fuller understanding of the 
long history of emergency government in the United States and in 
other nations throughout history from Greece and Rome to the 
Weimar Republic, we came to the conclusion that it would be irre- 
sponsible to propose a termination of the four concurrent states of 
national emergency without providing a means for declaring and 
terminating future emergencies. The Special Committee also decided 
it was necessary to enable the Executive and the Legislative branches. 
working jointly through the prescribed constitutional processes, to 
make the adjustments necessary for a return to normal government. 

In 1816, Thomas Jefferson wrote to his friend Joseph C. Cabell. 
the cofounder with President Jefferson of the University of Virginia. 
of his growing concern that political power not fall into the hands of 
one man or a determined group of just a few men. He wrote: 

Xo. my friend, the way to have a good and safe government, is not to trust it 
all to one, but to divide it among the many, distributing to everyone the functions 
he is competent to. 

Jefferson, in his letter to Cabell goes on to ask — 

What has destroyed liberty and the rights of man in every government which 
has ever existed under the sun? 

Jefferson's answer was short and explicit : 

The generalizing and concentrating of all cares and powers into one body. 

It is with Jefferson's admonition in mind that I urge the Senate to 
exercise "the function it is competent to" — to make the law and enact 
this proposal to strengthen our government of laws. 

That. Mr. President, is why I am particularly pleased with the con- 
versation we had this morning with the President of the United States 
who is supporting, in principle, the concepts that are embodied in the 
bill which the Senator from Idaho (Mr. Church) and I have now in- 
troduced on behalf of every member of the Special Committee, has also 
recognized that they reflect enduring constitutional principles which 
have been a part of our Government since the founding of the Re- 
public, and which have been respected and recognized by the great 
Presidents of the Republic in every age. 



84 

[Text of S. 3957] 

[Text of Interim Report — A Recommended National Emergencies Act] 

NEED FOR EMERGENCY POWERS LEGISLATION 

Mr. Pearson. Mr. President, I am proud to join with my colleagues 
on the Special Committee on the Termination of the National Emer- 
gency in sponsoring the National Emergencies Act. This bill is the 
product of a careful review of a President's emergency powers by a 
unique bipartisan committee. 

In a very real sense, Mr. President, this bill complements other 
efforts which this Congress has taken to reinstate constitutional gov- 
ernment as it was intended to function. We moved in Public Law 
93-148, the War Powers bill, toward a reassertion of the right of 
Congress to declare war. In the budget reform measure, we reasserted 
the right of Congress to control government expenditures. 

The National Emergencies Act, and these other laws, do not at- 
tempt to eliminate necessary and essential Executive powers which 
our country grants its President. Certainly there is a need for a Presi- 
dent to operate, on his own initiative, with speed and efficiency in the 
face of a national crisis. However, I believe that excessive power in 
the hands of any one man is both undesirable and alien to our sys- 
tem of government. 

During the past year and a half, all of us on the Committee have 
learned a great deal about the extent of the powers which a Presi- 
dent may exercise during a "national emergency.'' With the aid of a 
highly professional and competent staff, we have compiled a list 
of statutes and Executive orders detailing the precise nature of this 
authority. After reviewing this list, I was amazed at the extent to 
which Congress has delegated special powers to a President who 
deems that the United States is facing an emergency. 

My concern was increased when I realized that Congress bears a 
large share of responsibility for the steady accretion of emergency 
power. "While Presidents can and have unilaterally declared that states 
of emergency exist, Congress has given them means to exercise ex- 
traordinary powers during these times. Thus, Harry Truman's declara- 
tion of a national emergency in 1950 had a major psychological im- 
pact. However, laws passed by Congress, such as the Defense Produc- 
tion Act, provided the legal basis for most of his subsequent actions. 

There are nearly 500 such laws still on the books. Each law gives any 
President special powers during a "national emergency," during times 
of war, or when he deems that "war is imminent." The 1950 Emergency 
Proclamation, and three others are still on the books. As a result, each 
and every one of the Congressional delegations of power is today 
available for use by a Chief Executive. 

Even more amazing than the number of laws granting special power 
to the President is the fact that there is no mechanism for reviewing 
or revoking these laws once they are no longer needed. Unlike inherent 
Presidential powers which can be reviewed by the Supreme Court, 
emergency powers are specific legal delegations of authority to a Presi- 
dent. The Supreme Court has generally given deference to such dele- 
gations of authority. The laws are viewed as persuasive evidence of 



85 

Congressional intent that the President should be permitted special 
latitude during crises. Thus, unless the Congress itself imposes con- 
trols, emergency powers may remain largely unchecked. 

For this reason, the bill sponsored by the Special Committee is a 
carefully measured step toward reimposition of Congressional control. 
First, the bill suspends the existing authority of a President to utilize 
the laws granting him powers during a national emergency. After 
placing these laws on a "shelf," we also require future Presidents to 
specify the powers which they wish to use once an emergency has 
been declared. I believe that this is preferable to permitting the 
President to choose his actions from a large residuum of unorganized, 
undefined, and often outdated legislative grants of authority. 

Second, the bill imposes time limits on any future declaration of 
emergency. Xo emergency is effective beyond six months, unless speci- 
fically extended by Congress. This requires Congress to review any 
declaration of emergency and thereby imposes a degree of responsi- 
bility on Congress. 

Also, the bill proposes the repeal of existing emergency status which 
the Committee and the Administration have agreed are no longer 
needed. 

This bill is an important piece of legislation. Although it does not 
and cannot foresee every eventuality, it will interject a degree of 
thoughtful oversight over Executive decisionmaking. 

Mr. President. I recently outlined in greater detail my thoughts on 
this matter in article published in the Wichita Eagle on August 18. I 
ask unanimous consent that the article be printed at this point in the 
Pecord. 

[There being no objection, the article was ordered printed in the 
Record, as follows:] 

The President's Power 

(By James B. Pearson) 

Since 1950. any President of the United States, without prior consultation with 
Congress, has had the power to : 

Order a federal take-over of all Wichita aircraft plants and other defense- 
related industry. 

Declare the cities of Omaha and Colorado Springs to be military zones because 
of their sensitive defense facilities, and order the arrest of anyone entering or 
leaving these areas. 

Regulate radio and wire communications, including Western Union, news agen- 
cies such as the Associated Press and United Press international. 

Close the New York Stock Exchange, suspend all currency trading, after cus- 
toms and import duties, and control shipping and rail transportation facilities. 

Xo one seriously expects that in the absence of a major national or world 
upheaval that an American President would act so capriciously as to impose 
these Draconian measures. But the significant point is that a President could 
legally take these and ninny other even more sweeping action because since 1933 
the United States has been technically and legally in a state of national 
emergency. 

To most Americans, the idea of giving a President special powers when the 
future of the nation is at stake is not particularly frightening. We have often 
relied on a strong Executive to act quickly. This has been particularly true in time 
of war. 

Most people do not realize, however, that a President can declare a national 
emergency on his own in peace time. There is no firm, legal requirement that our 
lives or property be clearly threatened before such a declaration is made. 

This is true because a President, drawing upon a reservoir of strength from 
his position as commander-in-chief of the armed forces, and as Chief Executive 



86 

may perceive the need for special action or unusual decisions and thus proclaim 
a national emergency. 

The debate over the actual extent of the President's power in this area has 
raged for years. The issue has never been settled. Some Presidents have gener- 
ously interpreted their power to declare national emergencies. 

For example, in 1970 President Nixon declared a national emergency in re- 
sponse to a wildcat strike of postal employes in New York and Chicago. He 
declared that adequate postal service was important to the well being of the 
nation. 

The strike, he argued, could hinder the processing of men into the armed 
forces and impair tax collections and the distribution of social security and 
welfare payments. Following his statement, the President activated some Armed 
Forces Reserve units to begin distributing the mail in New York City. 

Actually, these emergency proclamations have little effect standing alone. Their 
significance lies in the fact that they serve to activate hundreds of laws passed 
by Congress over the years delegating special authority to the President in times 
when national emergencies are in effect. These special laws can be triggered 
simply because a proclamation of emergency, possibly declared years ago, has 
never been technically revoked. 

Congress has shown little reluctance in passing such laws. Time after time, 
when faced with crisis situations. Congress has handed the President, often with 
unseemly haste, special powers on a silver platter. While the President should 
assume leadership in a crisis, the Congress has often failed to consider the long 
run consequences of its actions. 

The lack of careful thoughtful review in granting these special powers was 
demonstrated in 1933. At that time, Franklin Roosevelt submitted an emergency 
banking bill to Congress. No member of the House or Senate had copies of the 
measure. It was passed after 38 minutes of debate. It approved actions the Presi- 
dent had already taken. 

Unfortunately, this incident is not unique. If we were to add up all Congres- 
sional grants of power it would not be an exaggeration to say that the ground- 
work had been laid for a legal dictatorship. 

The need for a serious, careful review of national emergency powers has be- 
come increasingly apparent in the last few years. And in 1973 the United States 
Senate established a Special Committee to study these extraordinary powers. I 
have been privileged to serve as a member of this Special Committee on the 
Termination of the National Emergency. 

When our Committee first began examining the question of the national emer- 
gency, it quickly became apparent that our first task was to identify the existing 
proclamations of emergency and to catalog all special laws that could be used 
when emergencies are in effect. No one really knew the full scope and nature 
of emergency powers. 

We learned that the four national emergencies declared in the last 40 years 
have never been repealed. In 1933 President Roosevelt issued an emergency dec- 
laration dealing with the Depression. Harry Truman's emergency proclamation 
in 1950 provided basis for our involvement in Korea. President Nixon declared 
an emergency in 1970 to deal with a postal strike. He proclaimed another emer- 
gency in 1971 relating to international economic problems. 

Then with the help of Air Force computers, the Committee compiled a list of 
more than 470 federal statutes which can be activated while emergencies are 
in effect. Some date back to the 1800's. They have never been coordinated. They 
are not organized in any special manner. All 470 are in effect today. 

In addition to these laws, Presidents have issued countless Executive orders, 
proclamations, and directives. These generally have all the force of law if based 
upon a specific Congressional delegation of authority. Many of these rulings are 
not published for review by Congress or the public. 

Each of these laws and Executive orders had legitimate objectives at the time 
of enactment. But over the years they have often been used in ways never 
imagined by the original authors. 

In addition to the rather dramatic possibilities listed in the opening paragraph, 
there are several actual incidents of Presidents using emergency laws of another 
era to justify their actions. 

For example, in 1917 Congress passed a law prohibiting trading with Germany, 
section 5(b) of the* "Trading With the Enemy Act" gives the President very 
broad economic powers during the time of war or during any other period of 
national emergency. This is still "good law" because of the 1950 emergency. 



87 

Thus in 1968. President Johnson, wishing to control the foreign investments of 
U.S. companies to alleviate the balance of payments crisis, issued an Executive 
order based on powers granted by the "Trading With the Enemy Act of 1917. 

In 1950, Congress passed the Defense Production Act giving a President wide- 
ranging powers to control the production of materials needed for national de- 
fense in connection with the Korean War. Its language is broad enough to permit 
the President to order government possession of a plant which refuses to manu- 
facture a specified kind or quantity of material. 

As late as 1966, this Act was used to fill a Department of Defense order for 3 
million tropical uniforms for use in Vietnam. Also, in the fourth quarter of 1966, 
the President relied on the law to require steel producers to set aside six percent 
of their output for defense. Eighteen percent of copper and thirteen percent of 
aluminum production also was ordered to be set aside for defense purposes. 

Several Presidents have, also, relied upon the Feed and Forage Act of 1861. 
This bill was passed during the Civil War to give the Army authority to obtain 
feed and cavalry forage when Congress was not in session. 

Today, this act still permits the armed services to use deficiency spending to 
obtain clothing, subsistence, fuel, quarters, and other supplies. I think these needs 
should be met. However, the law has also been used to finance American Ma- 
rines in Lebanon in 1958, to support the Berlin mobilization in 1962, and to 
maintain troops in Southeast Asia. 

I do not suggest that these actions are evil, dictatorial, or even unneeded. But 
I am persuaded that all the emergency powers, when taken together, give future 
Presidents an unacceptable range of discretionary power. To say that a con- 
temporary President would not likely abuse emergency power available to him 
is no guarantee that some future President under unforeseen conditions might 
not do so. 

But of equal or more importance than the possibility of the outright abuse of 
power is the fact that in exercising emergency authority, even in a legitimate 
and proper way, the President makes policy decisions which should be properly 
shared with the Congress. 

Because of the existence of these broad emergency powers, even the best in- 
tentioned of Presidents is tempted from time to time to take the quick, easy 
route of issuing Executive orders rather than coming to Congress with a request 
for statutory authority to deal with the problem at hand. 

This is, of course, not always possible. But if we are to maintain a proper 
balance of power over the long haul, we must continually be on the alert to pre- 
vent the unnecessary exercise of Presidential power and the undesirable decline 
of Congressional authority. 

No one suggests that the President should be denied the use of emergency 
powers. Congress cannot always move with the necessary speed to deal with 
crisis situations. The real question is not whether the President should have 
emergency powers, but how extensive they should be and how they should be 
controlled to assure proper accountability and to prevent possible abuse. 

Congressional review is essential to checking the steady growth and accumu- 
lation of Presidential emergency powers. We must insist upon our role to oversee 
the use of these and to terminate them when conditions are proper. 

One means of instituting stricter Congressional controls is to limit the length 
of emergency grants of power. 

The British have learned this lesson. During World War II. Parliament 
granted massive powers to the prime minister and his cabinet. Britain appeared 
to be a totalitarian state. However. Parliament, also, retained the right to re- 
view and terminate the special authority. This grant of powers had to be renewed 
annually by Parliament. Parliament never lost control of its ultimate right to 
review and revoke emergency powers. 

The U.S. Congress is finally beginning to impose time limits on the granting 
of special powers. The Economic Stabilization Act. which gave the President the 
power to invoke wage and price controls, was allowed to lapse on April 30. 1974. 

Also, during debate on emergency energy legislation last winter, Senator 
Church sought to include specific time limits in the grants of power given to the 
President. Because of the work of our Committee, we were able to convince the 
Senate to limit the delegation of emergency energy authority to one year. 

After long and careful study, the Special Committee to Terminate the National 
Emergency has now prepared and submitted to the Senate legislation which we 
believe effectively deals with the question of controlling the use of emergency 
powers. 



66-474 O - 76 - 7 



88 

Our bill proposes to terminate, after nine months, the effectiveness of all 
powers given to the President by law as the result of any national emergency cur- 
rently in effect. The 470 laws, which we mentioned earlier, would in effect be 
''placed on a shelf for use during future national emergencies." 

Outdated or unnecessary laws would be repealed. 

Under the bill, the President could in the future, declare a national emergency, 
But, along with his declaration, he would have to inform Congress precisely 
which powers "on the shelf" he wishes to use during the emergency. In case of 
war, the president could use any emergency statute on the books. 

The bill also specifies that any declared emergency will be automatically 
terminated within six months unless extended by Congress. Congress may, also, 
end the emergency before the six months expire. If the need for special Executive 
powers continues beyond six months, a President may declare another emergency. 
These subsequent declarations would also be subject to Congressional approval. 
During a war, the powers would remain effective until the war was terminated in 
accordance with constitutional processes. 

The bill also requires the President to maintain a file and index of all Executive 
orders or any other directives he issues. Copies of the orders must be given to 
Congress. The security of these rulings is protected if they contain confidential 
information. 

This bill is not the perfect answer to all of our questions. A devious President, 
if he could withstand the political pressure, might wait several days after the 
expiration of each emergency prior to announcing a new one. 

Congress could also refuse, out of spite or for political reasons, to approve 
legitimate measures needed to protect the Nation. Nevertheless, the bill does im- 
pose significant new restrictions on the unfettered use of emergency powers. 

This bill, if approved by Congress and signed by the President, will impose a 
measure of Congressional restraint and oversight in Executive powers which 
have fast become unmanageable. Its adoption would in no way cripple the Presi- 
dent's ability to contend with genuine emergency conditions. 

It does represent a step toward reinstituting constitutional government as I be- 
lieve it was intended to function. It is a major piece of legislation. It should 
be adopted. 

Mr. Stevensox. Mr. President, two weeks ago, the Constitution pro- 
vided for an orderly transition in the Presidency. 

Today, the Special Committee on National Emergencies and Dele- 
gated Emergency Powers on which I am privileged to serve is report- 
ing the National Emergencies Act. That act is intended to assure 
that in our democratic system of government the President's power 
does not exceed the power he derives from the Congress and the 
Constitution. 

The National Emergencies Act provides for : 

First, the termination of the present status of "national 
emergency" ; 

Second, a procedure for the declaration of emergencies and their 
termination ; 

Third, public disclosure of action taken pursuant to emergency 
power statutes; and 

Fourth, repeal of existing emergency power laws. 

Four Presidentially proclaimed states of national emergency are 
now in effect, Without the consent of Congress, the President can, 
among other things, seize property, organize and control means of 
production, assign military forces abroad, declare martial law, restrict 
travel and control all means of transportation and communication. A 
President can manage the lives of every American citizen by decree. 

Only a few of the President's emergency powers are being used 
which is evidence in itself that an "emergency" no longer exists. 



89 

The National Emergencies Act is the result of more than two years 
of hearings and research by the Special Committee on National Emer- 
gencies and Delegated Emergency Powers. 

This act will safeguard our constitutional balance of powers, if en- 
acted. But it cannot be enacted without the approval of the President. 
The Congress cannot reclaim its constitutional powers without the 
President's consent. 

President Ford has moved brilliantly, but symbolically, to redress 
the imbalance of power. I commend him. and I urge him and the Con- 
gress to now act by supporting this legislation. 

Mr. Hansen. Mr. President, I would like to take this opportunity to 
direct my remarks to a bill which the Special Committee on National 
Emergencies and Delegated Powers of which I am a member, recently 
reported. It is my understanding this bill will be referred to the Com- 
mittee on ( rovernment ( Operations. 

It Ls my feeling this bill offers a correct approach to restricting the 
Executive branch's power to declare a national emergency by giving it 
sufficient power to declare a national emergency when the "preserva- 
tion, protection, and defense of the Constitution, and . . . the common 
defense and -a fety of t he territory and people of the United States"" so 
require it. Few would argue the need under these circumstances lor im- 
mediate act ion. which many times ( Congress is unable to provide due to 
the majority consensus required. 

The source of nat tonal emergency power is derived mainly from dele- 
gat ion of Congressional power to"mak( all laws."" There has not been 
an usurpal ion by t lie Execut ive of ( 'ongress' power but rather there has 
been an authorized delegation. The appearance of excess and uncon- 
t rolled power of the Presidenl to declare a national emergency through 
an Executive order has stemmed mainly from failure to publish in tin 1 
Federal Register document.- which are in fact Executive orders and 
proclamations but which have not been formally prepared. 

('ongress has failed to specify substantive standards, which would 
require the record at ion of all documents in the above class. The statutes 
from which the power to declare a national emergency are incorporated 
have in many cases been obscured and the President has been able to 
draw this source of power from laws which were generally unknown. 
A- a result of the Committee staff's work, approximately 17" statute- 
have been located which contain authority for t he Presidenl from Con- 
- to declare a national emergency, ruder the bill. 470 statutes 
would remain dormant until t he Presidenl specified which he wishes to 
become act ive at the time when emergency conditions arise. If Congr< 
takes no action on the President's request within six months, the na- 
tional emergency will lapse. Congress could extend the emergency past 
six months if desired. The bill would also end the four existing states 
of national emergency and repeal laws that both the Executive and 
Congress believe to be obsolete. 

It is my feeding this bill has updated and coordinated the existing 
statutory authority for declaring a national emergency. It has set rea- 
sonable restrictions upon the use of this authority without restricting 
it beyond practicability. Congress has reclaimed its right to make all 
the laws by restricting the Executive's power to declare a national 



90 

emergency. Yet the Executive still retains the right under the 470 
statutes to declare a national emergency in the face of an emergency. 

Mr. Pell. Mr. President, the National Emergencies Act of 1974, in- 
troducd today by Senators Church and Mathias and cosponsored by all 
the members of the Special Committee on Xational Emergency Powers, 
including myself, is an unprecedented and crucial piece of legislation. 
This legislation is the product of 20 months of study and work by the 
Special Committee, particularly the cochairman and the staff. 

It is ironic, Mr. President, that the Special Committee was examin- 
ing the question of national emergencies and emergency powers during 
the same period in which the American people were becoming acutely 
concerned about the extent and use of Presidential power in our sup- 
posedly balanced system of Xational Government. 

In view of the continuing national reexamination of the proper 
roles of the Executive and Legislative branches of that Government, 
it is particularly appropriate that the Special Committee should come 
forward with this legislation today. 

The Xational Emergencies Act of 1974 simply but effectively fulfills 
the mandate of the Special Committee when it was created in the 92d 
Congress. It provides for the termination of the four states of na- 
tional emergency which continue in effect in our country. 

In place of those four states of national emergency, the legislation 
would establish what I believe to be an effective and responsible mech- 
anism for dealing with future national emergencies. 

Under the system proposed in this legislation, the Chief Executive 
would have available to him the power to declare a national emer- 
gency and to call into effect those powers which are necessary to deal 
quickly and effectively with the emergency situation. 

But, unlike past practice, the Congress would reserve its proper role 
of examining and judging the rectitude of the Chief Executive's ac- 
tions. There is also the clear recognition that such emergencies are 
temporary in nature and that the states of emergency should not :oiv 
tinue beyond the end of the emergency situation. 

Mr. President, I believe that action by the Congress to correct the 
inaction of the last 41 years, regarding emergencies and emergency 
powers, is long overdue." Senators Church and Mathias are to be com- 
mended for bringing this problem to the fore and for the thorough- 1 
ness of their study of the many facets of these questions. 

I hope that speedy action can occur on this legislation both in the 
Senate and in the House so that we can restore — at least in this one : 
crucial area — the balance that the framers of the Constitution so 
wisely constructed. 

The Presiding Officer. The Senator from Idaho. 
Mr. Church. Mr. President, I simply want to join with the distin- 
guished Senator from Marvland (Mr. Mathias) in expressing my own 
appreciation for the attitude shown by President Ford this morning. 
I think his recognition of the need to end emergency government and 
to restore normal Government is not only very encouraging to those 
of us who have worked long and hard on this Committee, but it makes 
this dav a promising one for the Republic. 

Mr. President, I would like to ask unanimous consent that the name 
of the distinguished Senator from Florida (Mr. Chiles) be added as 
a cosponsor to the bill we have introduced today. 



91 

The Presiding Officer (Mr. Helms). Without objection, it is so 
ordered. 

Mr. Church. Mr. President. I now suggest the absence of a quorum. 

The Presiding Officer. The clerk will call the roll. 

The assistant legislative clerk proceeded to call the roll. 

Mr. Chiles. Mr. President. I ask unanimous consent that the order 
for the quorum call be rescinded. 

The Presiding Officer. Without objection, it is so ordered. 



TEXT OF S. 3957, 93rd CONGRESS 

A BILL To terminate certain authorities with respect to national emergencies still In 
effect, and to provide for orderly implementation and termination of future national 
emergencies 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, That this Act may be cited as the 
"National Emergencies Act". 

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES 

TERMINATING POWERS AND AUTHORITIES 

Sec. 101 (a) All powers and authorities conferred by law upon the President, 
any other officer or employee of the Federal Government, or upon any depart- 
ment, agency, independent establishment, or any other body of the Federal 
Government, and all powers and authorities conferred by any Executive order 
pursuant to law as a result of the existence of any national emergency in ef- 
fect immediately prior to the two hundred and seventy-first day after the date 
of enactment of this Act, are terminated on such two hundred and seventy-first 
day. 

(b) For the purpose of this section, the words "any national emergency in 
effect" means a general declaration of emergency made by the President pur- 
suant to a statute authorizing him to declare a national emergency. 

TITLE II— FUTURE NATIONAL EMERGENCIES 

Sec. 201. (a) In the event the President finds that the proclamation of a na- 
tional emergency is essential to the preservation, protection, and defense of 
the Constitution, and is essential to the common defense, safety, or well-being 
of the territory and people of the United States, the President is authorized to 
proclaim the existence of a national emergency. Such proclamation shall there- 
upon be made public, and shall be published immediately in the Federal Register. 

(b) Any provisions of law conferring powers and authorities to be exercised 
during a national emergency shall be effective and remain in effect with respect 
to national emergency (1) only wherv the President (in accordance with sub- 
section (a) of this section), specifically declares a national emergency, and (2) 
only in accordance with this Act. No law enacted after the date of enactment 
of this Act shall supersede this title unless it does so in specific terms, referring 
to this title, and declaring that the new law supersedes the provisions of this 
title. 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec 301. Whenever Congress declares war, any provisions of law confer- 
ring powers and authorities to be exercised during time of war or a national 
emergency shall be effective from the date of such declaration and remain in 
effect only in accordance with the provision of Title IV of this Act. 

TITLE IV— FUTURE NATIONAL EMERGENCIES 

EXERCISING EMERGENCY POWERS AND AUTHORITIES 

Sec 401. (a) When the President declares a national emergency, or Con- 
gress declares war, any provision of law conferring powers and authorities to 
be exercised during such a national emergency or during a war declared by the 
Congress shall be effective and remain in effect with respect to such emergency 
or war only in accordance with this Act. 

(b) When the President declares a national emergency, no powers made 
available by statute for use in the event of an emergency shall become operative 

(92) 



93 

unless and until the President specifies by Executive order the specific provisions 
of law under which he proposes that he, or other officers of the Executive branch, 
will act. Such specification may be made either in the original declaration of a 
national emergency, or by subsequent order, but no power granted in the event 
of the declaration of a national emergency shall be available unless or until it 
has been so specified by the President. All such specifications shall be published 
immediately in the Federal Register, and a copy of any declaration of national 
emergency, and of such specifications, shall be transmitted immediately to 
Congress. 

LIMITATIONS OX NATIONAL EMERGENCIES DECLARED BY PRESIDENT 

Sec 402. Any national emergency declared by the President in accordance 
with this title shall terminate at the end of the one hundred and eightieth day 
after the date the national emergency was declared, and any of the provisions 
of law referred to in section 401(a) of this Act shall not be effective after the 
end of such one hundred and eightieth day unless Congress by concurrent 
resolution — 

(1) terminates such emergency on an earlier date ; or 

(2) continues such emergency to a day specified in the concurrent resolu- 
tion, beyond the end of such one hundred and eightieth day. 

Any national emergency declared by the President shall then be terminated on 
the date specified in any such concurrent resolution referred to in clauses (1) 
and (2) of this section, and any such provisions of law shall not be effective 
after such specified date with respect to that emergency. 

TERMINATING AND CONTINUING NATIONAL EMERGENCIES AND WARS 

Sec. 403. (a) In no event shall any provision of law referred to in section 401 
(a) of this Act remain in effect beyond the end of the one hundred and eightieth 
day following the date of the declaration of the emergency or war unless, in the 
case of ;i declaration of war by Congress, if such declared war has not been 
terminated in accordance with constitutional processes. 

(b) The provisions of sections 401 and 402 of this Act and subsection (a) of 
this section shall apply to any subsequent declaration of a national emergency 
or war made with respect to the same emergency or war under subsection (a) 
of this section. 

TITLE V— MISCELLANEOUS 

ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE PRESIDENT 

Sec 501. (a) When the President declares a national emergency, or Congress 
declares war. the President shall be responsible for maintaining a file, and an 
index thereof, of all Executive orders by the President, including all instances 
of the exercise by the President of any power conferred on him by statutes and 
the Constitution : all rules and regulations, by whatever name called, promulgated 
by any Executive department, administration, independent establishment, board, 
commission, official, group of officials, or other rulemaking authority : and all 
other rules, regulations, orders, by whatever name called, made directly or in- 
directly under the expressed or implied authority of the Constitution or any 
Act of Congress with respect to the declarations of national emergency or war. 
The President shall transmit to the House of Representatives and the Senate 
and to the appropriate committees of the Congress the texts of each order, rule, 
or regulation, by whatever name called, promulgated by any Executive depart- 
ment, administration, independent establishment, board, commission, official, 
group of officials, or other rulemaking authority ; and all other orders, rules. 
and regulations, by whatever name called, made directly or indirectly under 
expressed or implied authority of the Constitution or any Act of Congress with 
respect to the declaration of national emergency or war, as soon as practicable 
after that order, by whatever name called, has been issued. 

Cb) Any such order, rule, or regulation which conforms with procedures estab- 
lished by law, shall be transmitted to the House of Representatives and the 
Senate and to the appropriate committees of Congress under means to assure its 
proper confidentiality. 



94 



TITLE VI— REPEAL OF CERTAIN EMERGENCY POWER STATUTES 

Sec. 601. Except with respect to the rights and duties that matured, penalties 
that were incurred, and proceedings that were begun, prior to the date of enact- 
ment of this Act, the following provisions of law are repealed : 



(7 U.S.C. 


1741) 


(7 U.S.C. 


1742) 


(7 U.S.C. 1743) 


(7 U.S.C. 1744) 


(7 U.S.C. 1745) 


(7 U.S.C. 1746) 


(7 U.S.C. 


1747) 


(8 U.S.C. 


1481(a) (10)) 


(10 U.S.C. 


2667(b)(4)) 


(10 U.S.C. 4025) 


(10 U.S.C. 9025) 


(12 U.S.C. 


95) 


(12 U.S.C. 


95(a)) 


(12 U.S.C. 


249) 


(12 U.S.C. 1703) 


(12 U.S.C. 


1705) 


(12 U.S.C. 


1748b (a)) 


(16 U.S.C. 


831d(m)) 


(18 U.S.C. 1383) 


(26 U.S.C. 


168) 


(41 U.S.C. 


101) 


(41 U.S.C. 


102) 


(41 U.S.C. 


103) 


(41 U.S.C. 


104) 


(41 U.S.C. 


105) 



(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(41 U.S.C. 
(42 U.S.C. 
(42 U.S.C. 
(50 U.S.C. 
(50 U.S.C. 



106) 
107) 
108) 
109) 
110) 
111) 
112) 
113) 
114) 
115) 
116) 
117) 
118) 
119) 
120) 
121) 
122) 
123) 
124) 
125) 
211b) 
1592) 
9(e)) 
App. 1742). 



95 



Calendar No. 1136 



93d Coxgress ) SENATE ( Report 



2d Session f 1 No. 93-1193 



{ 



NATIONAL EMERGENCIES ACT 



September 30, 1974. — Ordered to be printed 



Mr. Ervix, from the Committee on Government Operations, 
submitted the following 



l to 



REPORT 

[To accompany S. 3957] 

The Committee on Government Operations, to which was referred 
the bill (S. 3957) to terminate certain authorities with respect to na- 
tional emergencies still in effect, and to provide for orderly imple- 
mentation and termination of future national emergencies! having 
considered the same, reports favorably thereon without amendment 
and recommends that the bill do pass. 

Purpose 

The purpose of S. 3957 is to end the four states of national emer- 
gency currently in force and to provide for a procedure for meeting 
future emergencies which will assure the operation of Constitutional 
processes. 

In order to carry out this purpose the National Emergencies Act 
would : 

(1) Terminate the four states of national emergency now in 
force ; 

(2) Provide for automatic termination of future national emer- 
gencies after six months unless extended by Congressional action; 

(3) Provide for Congressional oversight of and accountability 
for actions taken by the Executive in the exercise of delegated 
emergency powers ; and 

(4) Repeal specific obsolete emergency powers statutes. 
Four states of national emergency are now in force. The national 

emergency declared by President Roosevelt on March 6, 1933. to meet 
the crisis of the depression has not been formally terminated. 



96 



The national emergency declared on December 16, 1950, by Presi- 
dent Truman to mobilize the country for the Korean War, is still in 
effect. 

The national emergency declared by President Nixon on March 23, 

1970, to cope with the Post Office strike, has not been terminated. 
The national emergency declared by President Nixon on August 15, 

1971, to implement currency restrictions and to enforce controls on 
foreign trade remains in effect. 

The termination of the existing states of emergency would take 
effect nine months after the date of enactment of this bill. This nine- 
month grace period is provided to enable the Executive branch to make 
legislative proposals for the small body of "emergency" powers that 
have become everyday functions of the government, with enough time 
to obtain enactment through normal legislative processes. 

The second section of the bill provides for regular and consistent 
procedures by which emergencies can be met in the future. The defini- 
tion of an emergency has been deliberately cast in broad terms that 
makes it clear that a proclamation of a state of national emergency 
requires a grave national crisis. In the event of such a crisis, the Presi- 
dent, by proclamation, would declare the existence of a national emer- 
^oncy. The proclamation of the President would be immediately made 
public and published in the Federal Register. In his proclamation 
the President would specify his reasons for declaring the emergency 
and the statutory powers he intended to invoke. The delegation of 
authority would take effect immediately upon public notification by 
the President. Any time within the next six months, the Congress could 
affirm or reject bv Concurrent Resolution the President's use of these 
powers. If the Congress did not act, the declared emergency would 
lapse after six months. Proclaimed states of national emergency could 
be extended for six-month periods but each extension would require an 
affirmative act by the Congress and be limited to six months. 

The third section of the bill would require an accounting of all sig- 
nificant actions taken by the President pursuant to emergency powers 
invoked during a declared state of national emergency. This section 
is intended to provide the means for effective Congressional oversight 
of the executive branch's use of statutory delegated emergency powers. 

The final section of the bill is a list of statutes to be repealed. The 
Standing Committees and the Executive branch departments and 
agencies have agreed that these statutes are obsolete and should be 
stricken from the books. 

History of Legislation 

The National Emergencies Act was introduced by the Senate Spe- 
cial Committee on National Emergencies and Delegated Emergency 
Powers on August 22, 1974. The Act was sponsored by Senators 
Church, Mathias, Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin, 
Chiles, Williams. Muskie, Javits, Ribicoff, and Roth. 

The National Emergencies Act is the result of almost two years of 
hearings, investigations and studies conducted bv the bipartisan spe- 
cial committee under the co-chairmanship of Senator Church and 
Senator Mathias and whose other members are Senators Hart, Case, 
Pell, Pearson, Stevenson and Hansen. The Special Committee had its 



97 



origins in the final months of the 92nd Congress, when considerable 
interest was expressed within the Senate in determining with pre- 
cision what emergency powers were available to the Executive. With 
the opening of the 93rd Congress, there was established, on January 6, 
1973, a Special Committee on the Termination of the National Emer- 
gency. The mandate of the Special Committee, as expressed in its au- 
thorizing resolution (S. Res. 9), was "to conduct a study and in- 
vestigation with respect to the matter of terminating the national 
emergency proclaimed by the President of the United States on 
December 16, 1950, as announced in Presidental Proclamation Num- 
bered 2914, dated the same date." 

It was soon discovered that more than one proclamation of national 
emergency was in effect •; in fact, there are four such instruments, issued 
in 1933, 1950, 1970 and 1971, now in force. After examining the U.S. 
Code and uncodified statutory emergency powers, the Special Commit- 
tee identified over 470 provisions of Federal law in effect which dele- 
gate extraordinary authority in time of national emergency to the 
Executive.* 

The Special Committee discovered that there was no consistent 
procedure for declaring, administering or terminating states of na- 
tional emergencies. The Special Committee, therefore, worked on two 
main tasks. First, to explore how existing states of national emergency 
could be terminated with the least adverse effects. There were three pos- 
sible approaches: (a) outright repeal of all emergency statutes, (b) 
relegating all emergency provisions to a state of domancy to be used in 
future emergencies, or (c) maintaining emergency provisions in the 
United States Code but for use only in states of emergency declared in 
accordance with regular and consistent procedures which would pro- 
vide for termination and oversight. 

The second task was to explore the possibility of establishing a pro- 
cedure for declaring states of national emergency. The procedure 
would require accountability for actions taken by the Executive pur- 
suant to delegated emergency authorities in order to permit the Con- 
gress to effectively exercise its oversight responsibilities. 

Concurrent with the historical research undertaken by the staff of 
the Special Committee, the Library of Congress and distinguished con- 
sultants, hearings were held on the history of emergency rule in the 
United States and constitutional problems created by such rule. The 
dates of Committee hearings were April 11 and 12, July 24 and 
November 28, 1973. 

Professor Eobert S. Rankin, Emeritus, of Duke University, Pro- 
fessor Cornelius P. Cotter of the University of Wisconsin, and Pro- 
fessor J. Malcolm Smith of California State University, all renowned 
scholars of the subject of emergency powers, testified in hearings held 
by the Special Committee on April 11, 1973. Since that time they have 
continued to advise the Committee on particular constitutional and 
legal questions concerned with emergency powers. 

♦See U.S. Congress, Senate — Special Committee on the Termination of the National 
Emergency : Emergency Powers Statutes : Provisions of Federal Law Now in Effect Dele- 
gating to the Executive Extraordinary Authority in Time of National Emergency, Wash- 
ington, U.S. Govt. Print. Off., 1973 (93d Congress, 1st session, Senate Report No. 549) 
607 pages ; see also, Executive Orders in Times of War and National Emergency, Wash- 
ington, U.S. Govt. Print. Off., 1974 (93d Congress, 2d session), 283 pages. 



98 



The Dean of the Georgetown University Law Center, Professor 
Adrian S. Fisher, testified on the circumstances surrounding the decla- 
ration of the 1950 national emergency. His testimony was particu- 
larly useful because Professor Fisher was an advisor to Harry Truman 
at the time the emergency was declared. Dr. Gerhard Casper, Professor 
of Law and Political Science at the University of Chicago, testified on 
the constitutional questions involved in Executive use of emergency 
powers, comparing the experiences of other democratic states, particu- 
larly those of the Weimar Republic. 

The Special Committee has had the benefit of the full cooperation 
and assistance of three successive Attorneys General: Kleindienst, 
Richardson and Saxbe, respectively, as well as three Secretaries of 
Defense and the Office of Management and Budget. 

In addition, the Special Committee called upon former Attorney 
General of the United States and Associate Justice of the U.S. Su- 
preme Court (retired) Tom C. Clark, former Attorney General 
Nicholas DeB. Katzenbach, and former Attorney General Ramsey 
Clark for their perspectives on emergency powers from the vieAvpoint 
of the Justice Department and the Supreme Court. Just prior to his 
death, the late Chief Justice of the Supreme Court Earl Warren in- 
formally provided to the Committee counsel based upon his long ex- 
perience and life in the law. As reported by Senator Mathias in a 
speech to the Senate on August 22, 1974 : 

Chief Justice Warren said that while the Constitution pro- 
vides that only Congress can make the law, the legislature has 
the obligation through enacting statutes to provide firm 
policy guidelines for the Executive branch. The former Chief 
Justice agreed with Justice Jackson r s view that where there 
are statutory guidelines, a President is obliged to follow the 
precepts contained in the laws passed by the Congress. In- 
herent powers problems arise and the other branches act, he 
said, largely when Congress fails to act definitely, when it 
fails to make needed laws and when there is a necessity for 
legislative action and Congress fails to meet the challenge. 

We then discussed the outline and the constitutional con- 
cept that lay behind the legislative proposal to meet future 
national emergencies now before the Senate. Chief Justice 
Warren thought it was, in principle, a sound solution to what 
he recognized as a serious threat to constitutional government. 

Following his resignation as Attorney General of the United States, 
Elliot Richardson presented his views to the Special Committee as did 
former Solicitor General Erwin N. Griswold. 

On the basis of these hearings, contained in three volumes issued as 
committee reports, consultations with every department and agency of 
the Executive branch, the Federal Register and consultation with 
many distinguished legal scholars in the Executive branch, in the 
Library of Congress and in numerous universities and law schools, the 
Special Committee drew up legislation making use of many of the sug- 
gestions of these persons and the witnesses who had appeared before 
Committee hearings. The Special Committee took as a basic guideline 
the opinion of the Supreme Court in the Youngstown Steel Case, 



99 



particularly that portion of the concurring opinion given by Justice 

Jackson : 

The appeal, however, that we declare the existence of in- 
herent powers ex necessitate to meet an emergency asks us to 
do what many think would be wise, although it is something 
the forefathers omitted. They knew what emergencies were, 
knew the pressures they engendered for authoritative action, 
knew, too, how they afford a ready pretext for usurpation. 
We may also suspect that they suspected that emergency pow- 
ers would tend to kindle emergencies. Aside from suspension 
of the privilege of the writ of habeas corpus in time of rebel- 
lion or invasion, Avhen the public safety may require it, they 
made no express provision for exercise of extraordinary au- 
thority because of a crisis. I do not think we rightfully may 
so amend their work, and, if we could, I am not convinced it 
would be wise to do so. although many modern nations have 
forth rightly recognized that Avar and economic crises may 
upset the normal balance between liberty and authority. 
Their experience with emergency powers may not be irrele- 
vant to the argument here that we should say that the 
Executive, of his own volition, can invest himself with unde- 
fined emergency powers. 

Germany, after the First World War, framed the Weimar 
Constitution, designed to secure her liberties in the Western 
tradition. However, the President of the Republic, without 
concurrence of the Reichstag, was empowered temporarily to 
suspend any or all individual rights if public safety and 
order were seriously disturbed or endangered. This proved a 
temptation to every government, whatever its shade of 
opinion, and in 13 years suspension of rights was invoked on 
more than 250 occasions. Finally, Hitler persuaded President 
von Hindenburg to suspend all such rights, and they were 
never restored. 

The French Republic provided for a very different kind of 
emergency government known as the "state of seige." It dif- 
fered from the German emergency dictatorship particularly 
in that emergency powers could not be assumed at will by the 
Executive but could only be granted as a parliamentary 
measure. And it did not, as in Germany, result in a suspen- 
sion or abrogation of law but was a legal institution governed 
by special legal rules and terminable by parliamentary 
authority. 

Great Britain also has fought both World Wars under a 
sort of temporary dictatorship created by legislation. As Par- 
liament is not bound by written constitutional limitations, it 
established a crisis government simply by delegation to its 
Ministers of a larger measure than usual of its own unlimited 
power, which is exercised under its supervision by Ministers 
whom it may dismiss. This has been called the "high-water 
mark in the voluntary surrender of liberty,'- but, as Churchill 
put it, "Parliament stands custodian of these surrendered 



100 



liberties, and its most sacred duty will be to restore them in 
their fullness when victory has crowned our exertions and our 
perseverance." Thus, parliamentary controls made emergency 
powers compatible with freedom. 

This contemporary foreign experience may be inconclusive 
as to the wisdom of lodging emergency powers somewhere in 
a modern government. But it suggests that emergency powers 
are consistent with free government only when their control 
is lodged elsewhere than in the Executive who exercises them. 
That is the safeguard that would be nullified by our adoption 
of the "inherent powers" formula. Nothing in my experience 
convinces me that such risks are warranted by any real neces- 
sity, although such powers would, of course, be an Executive 
convenience. 

In the practical working of our Government we already 
have evolved a technique within the framework of the Con- 
stitution by which normal Executive powers may be consider- 
ably expanded to meet an emergency. Congress may and has 
granted extraordinary authorities which lie dormant in nor- 
mal times but may be called into play by the Executive in 
war or upon proclamation of a national emergency. In 1939, 
upon congressional request, the Attorney General listed 
ninety-nine such separate statutory grants by Congress of 
emergency or wartime Executive powers. They were invoked 
from time to time as need appeared. Under this procedure we 
retain Government by law — special, temporary law, perhaps, 
but law nonetheless. The public may know the extent and 
limitations of the powers that can be asserted, and persons 
affected may be informed from the statute of their rights and 
duties. 

In view of the ease, expedition and safety with which Con- 
gress can grant and has granted large emergency powers, cer- 
tainly ample to embrace this crisis, I am quite unimpressed 
with the argument that we should affirm possession of them 
without statute. Such power either has no beginning or it 
has no end. If it exists, it need submit to no legal restraint. 
I am not alarmed that it would plunge us straightwa}' into 
dictatorship, but it is at least a step in that wrong direction. 
***** 

But I have no illusion that any decision by this Court can 
keep power in the hands of Congress if it is not wise and 
timely in meeting its problems. A crisis that challenges the 
President equally, or perhaps primarily, challenges Congress. 
If not good law, there was worldly wisdom in the maxim at- 
tributed to Napoleon that "The tools belong to the man who 
can use them." We may say that power to legislate for emer- 
gencies belongs in the hands of Congress, but only Congress 
itself can prevent power from slipping through its fingers. 

The essence of our free Government is "leave to live by no 
man's leave, underneath the law" — to be governed by 'those 
impersonal forces which we call law. Our Government is 
fashioned to fulfill this concept so far as humanly possible. 



101 



The Executive, except for recommendation and veto, has no 
legislative power. The Executive action we have here origi- 
nates in the individual will of the President and represents 
an exercise of authority without law. No one, perhaps not 
even the President, knows the limits of the power he may 
seek to exert in this instance and the parties affected cannot 
learn the limit of their rights. We do not know today what 
powers over labor or property would be claimed to flow from 
Government possession if we should legalize it, what rights 
to compensation would be claimed or recognized, or on what 
contingency it would end. With all its defects, delays and 
inconveniences, men have discovered no technique for long 
preserving free government except that the Executive be 
under the law, and that the law be made by parliamentary 
deliberations. 

Such institutions may be destined to pass away. But it is 
the duty of the Court to be last, not first, to give them up. 

The research required to bring together the statutes and Executive 
orders concerned with war and national emergency could not have 
been achieved without the help of all the Executive departments and 
agencies. The Air Force gave the Special Committee access to its LITE 
computer system which included the U.S. Code among its tapes. This 
made it possible to begin to identify the statutes triggered by a state 
of national emergency. In addition to the computer search, the Special 
Committee made a hand-search of all 87 volumes of the Statutes-at- 
Large. 

The result of the search of the U.S. Code and the Statutes-at-Large 
and of the collection of proclamations and Executive orders found 
at the Library of Congress and at the Federal Register, were two 
compilations, the first entitled "Emergency Powers Statutes: Pro- 
visions of Federal Law Now in Effect Delegating to the Executive 
Extraordinary Authority in Time of National Emergency," and the 
second, "Executive Orders in Times of War and National Emergency." 
In addition, "A Brief History of Emergency Powers in the United 
States," prepared by the Library of Congress was just issued as a 
committee print. A handbook containing the evaluations of all emer- 
gency statutes made by Standing Committees of the Senate and by 
Executive branch departments and agencies is now in the process of 
being printed. 

Section-by-Section Analysts 

S. 3957, the National Emergencies Act, contains six sections. They 
provide for the termination of existing states of national emergencies 
to take effect nine months after date of enactment. A procedure for 
meeting future emergencies is set forth including provisions for ter- 
mination, extension and accountability for actions taken. The final 
section lists existing but obsolete statutes to be repealed upon enact- 
ment. 

SECTION 101 

Subsection (a) states that all existing national emergencies are to 
be terminated and all powers and authorities conferred by statutes 
dependent upon a declared state of national emergency are terminated 



102 



two hundred and seventy one days (nine months) after the enactment 
of the National Emergencies Act. 

Subsection (b) defines the term "any national emergency in effect" 
as any general declaration of emergency made by the President pur- 
suant to a statute authorizing him to declare a national emergency. 

section 201 

Subsection (a) provides that the President may declare a proclama- 
tion of national emergency when it is "essential to the preservation, 
protection, and defense of the Constitution, and is essential to the 
common defense, safety, or well-being of the territory and people of 
the United States." Any such proclamation must be made public and 
published in the Federal Register. 

Subsection (b) provides that any statute that becomes effective in 
time of a declared national emergency, shall only be lawful if the pro- 
visions of this Act are complied with. No future act will supercede 
this Act unless it does so in specific terms, and declares that the pur- 
pose of the new law is to supercede either particular parts or the 
whole of this Act. 

SECTION 301 

When Congress declares war, any statutes that take effect in times 
of a declared national emergency are also in effect. These emergency 
powers remain in effect in conformity with procedures provided by 
this Act. 

SECTION 401 

Subsection (a) provides that only declared states of national emer- 
gency that comply with this Act shall have legal authority and effect. 

Subsection (b) provides that the President must specify the emer- 
gency powers statutes he is making use of. The powers specified in 
the declaration must be published in the Federal Register, and the 
declaration, as well as the specified statutes must be transmitted im- 
mediately to Congress. 

SECTION 402 

Any future national emergency declared by the President shall 
automatically terminate after six months, unless the emergency is 
terminated earlier, or the Congress by concurrent resolution specifies 
a day beyond the six months when the emergency will end. 

SECTION 403 

Subsection (a) provides that in the case of a war declared by Con- 
gress statutory emergency powers specified by the President for use in 
a proclamation terminate at the end of 180* days unless extended in 
accordance with the procedures provided by this Act. 

Subsection (b\ provides that the procedures for exercising emer- 
gency powers and authorities contained in sections 401 and 402 of this 
Act will apply to any subsequent declarations of national emergency 
affecting the same war or national emergency. 



103 



SECTION 501 

Subsection (a) provides for a reporting by the Executive branch 
whereby each emergency order or rule promulgated under the author- 
ity of the national emergency and its use will be recorded and reported 
to Congress. 

Subsection (b) provides that where required, proper confidentiality 
will be maintained for reports transmitted to the Congress. 

SECTION 601 

Repeals certain statutes that are obsolete. 

Estimated Cost of Legislation 

It is not expected that enactment of this legislation would require 
any significant additional expenditures. 

Changes in Existing Law 

In compliance with subsection 4 of rule XXIX of the Standing 
Rules of the Senate, changes made by the bill as reported are shown 
as follows (existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in which no 
changes is proposed is shown in roman) : 

TITLE 7.— AGRICULTURE, UNITED STATES CODE 



[Chapter 42.— AGRICULTURAL COMMODITY SET- ASIDE 

[§1741. Maximum and minimum quantities for set-aside; 
definition. 

[The Commodity Credit Corporation shall, as rapidly as the Secre- 
tary of Agriculture shall determine to be practicable, set aside within 
its inventories not more than the following maximum quantities and 
not less than the following minimum quantities of agricultural com- 
modities or products thereof heretofore or hereafter acquired by it 
from 1954 and prior years' crops and production in connection with 
its price support operations : 



Maximum Minimum 

Commodity quantity quantity 

Wheat (bushels) 500,000,000 400,000,000 

Upland cotton (bales) .... . 4, 000, 000 3, 000, 000 

Cottonseed oil (pounds) .. 500,000,000 

Butter (pounds)... 200,000,000 

Nonfat dry milk solids (pounds) 300, 000, 000 

Cheese (pounds)... 150,000,000 



[Such quantities shall be known as the "commodity set-aside." 



■474 O - 76 - 



104 



£§ 1742. Determination of commodity value for set-aside. 

[Quantities of commodities shall not be included in the commodity 
set-aside which have an aggregate value in excess of $2,500,000,000. 
The value of the commodities placed in the commodity set-aside, for 
the purpose of this section, shall be the Corporation's investment in 
such commodities as of the date they are included in the commodity 
set-aside, as determined by the Secretary. 

[§ 1743. Reduction of set-aside. 

[(a) Such commodity set-aside shall be reduced by disposals made 
in accordance with the directions of the President as follows : 

[ ( 1 ) Donation, sale, or other disposition for disaster or other 
relief purposes outside the United States pursuant to and subject 
to the limitations of subchapter III of chapter 41 of this title ; 

[(2) Sale or barter (including barter for strategic materials) 
to develop new or expanded markets for American agricultural 
commodities, including but not limited to disposition pursuant 
to and subject to the limitations of subchapter II of chapter 41 of 
this title : 

[(3) Donation to school-lunch programs; . 
[(4) Transfer to the national stockpile established pursuant to 
sections 98 to 98h of Title 50, without reimbursement from funds 
appropriated for the purposes of said sections; 

[(5) Donation, sale, or other disposition for research, experi- 
mental, or educational purposes ; 

[(6) Donation, sale, or other disposition for disaster relief 
purposes in the United States or to meet any national emergency 
declared by the President ; and 

[(7) Sale for unrestricted use to meet a need for increased sup- 
plies at not less than 105 per centum of the parity price in the 
case of agricultural commodities and a price reflecting 105 per 
centum of the parity price of the agricultural commodity in the 
case of products of agricultural commodities. 
[The President shall prescribe such terms and conditions for the 
disposal of commodities in the commodity set-aside as he determines 
will provide adequate safeguards against interference with normal 
marketings of the supplies of such commodities outside the commodity 
set-aside. Strategic materials acquired by the Commodity Credit Cor- 
poration under paragraph (2) of this subsection shall be transferred 
to the national stockpile established pursuant to sections 98 to 98h of 
Title 50, and the Commodity Credit Corporation shall be reimbursed 
for the value of the commodities bartered for such strategic materials 
from funds appropriated pursuant to section 98g of Title 50. For the 
purpose of such reimbursement, the value of any commodity so bar- 
tered shall be the lower of the domestic market price or the Commodity 
Credit Corporation's investment therein as of the date of such barter, 
as determined by the Secretary of Agriculture. 

[(b) The quantity of any commodity in the commodity set-aside 
shall be reduced to the extent that the Commodity Credit Corporation 
inventory of such commodity is reduced, by natural or other cause be- 
yond the control of the Corporation, below the quantity then charged 
to the commodity set-aside. 



105 



[§ 1744. Sale of commodities in set-aside ; exemption from pricing 
limitations. 

[(a) The Corporation shall have authority to sell, without regard 
to section 1743(a)(7) of this title, any commodity covered by the 
commodity set -aside for the purpose of rotating stocks or consolidat- 
ing inventories, any such sale to be offset by purchase of the same 
commodity in a substantially equivalent quantity or of a substantially 
equivalent value. 

[(b) Dispositions pursuant to this chapter shall not be subject to the 
pricing limitations of section 1427 of this title. 

[§ 1745. Computation of carry-over. 

[The quantity of any commodity in the commodity set-aside or 
transferred from the set-aside to the national stockpile established 
pursuant to sections 98 to 98h of Title 50 shall be excluded from the 
computation of "carryover'* for the purpose of determining the price 
support level for such commodity under the Agricultural Act of 
1949, as amended, and related legislation, but shall be included in the 
computation of total supplies for purposes of acreage allotments and 
marketing quotas under the Agricultural Adjustment Act of 1938. as 
amended, and related legislation. Until such time as the commodity 
set-aside has been completed, such quantity of the commodity as the 
Secretary shall determine between the maximum and minimum quan- 
tities specified in section 1741 of this title shall be excluded from the 
computations of "carryover*' for the purpose of determining the price 
support level, but shall be included in the computation of total sup- 
plies for purposes of acreage allotments and marketing quotas, for the 
1955 crop of the commodity, notwithstanding that the quantity so ex- 
cluded may not have been acquired by the Corporation and included 
in the commodity set-aside. 

[§ 1746. Records and accounts. 

[The Commodity Credit Corporation shall keep such records and 
accounts as may be necessary to show, for each commodity set-aside, 
the initial and current composition, value (in accordance with sec- 
tion 1742 of this title), current investment, quantity disposed of, 
method of disposition, and amounts received on disposition. 

[§1747. Appropriations; determination of value of transferred 
commodity. 

[In order to make payment to the Commodity Credit Corporation 
for any commodities transferred to the national stockpile pursuant to 
section 1743(a) (4) of this title, there are authorized to be appropri- 
ated amounts equal to the value of any commodities so transferred. 
The value of any commodity so transferred, for the purpose of this 
section, shall be the lower of the domestic market price or the 
Commodity Credit Corporation's investment therein as of the date 
of transfer to the stockpile, as determined by the Secretary of 
Agriculture.*] 

TITLE 8.— ALIENS AND NATIONALITY, UNITED STATES 

CODE 



106 



Part III. — Loss of Nationality 

§ 1481. Loss of nationality by native-born or naturalized citi- 
zen ; voluntary action ; burden of proof ; presumptions. 

(a) From and after the effective date of this chapter a person who 
is a national of the United States whether by birth or naturalization, 
shall lose his nationality by — 

(1) * * *. 

* * * * * * - * 

[(10) departing from or remaining outside of the jurisdiction of 
the United States in time of war or during a period declared by the 
President to be a period of national emergency for the purpose of 
evading or avoiding training and sevice in the military, air, or naval 
forces of the United States. For the purposes of this paragraph failure 
to comply with any provision of any compulsory service laws of the 
United States shall raise the presumption that the departure from or 
absence from the United States was for the purpose of evading or 
avoiding training and service in the military, air, or naval forces of the 
United States.] 

TITLE 10.— ARMED FORCES, UNITED STATES CODE 



Chapter 159.— REAL PROPERTY; RELATED PERSONAL 
PROPERTY; AND LEASE OF NON-EXCESS PROPERTY 
******* 
§ 2667. Leases : non-excess property. 

(a) * * *. 
******* 

(b) A lease under subsection (a) — 
/j\ * * * 

* * * * * * * 

[(4) must be revocable by the Secretary during a national emer- 
gency declared by the President ; and] 

******* 

Chapter 873.— CIVILIAN EMPLOYEES 

******* 

[§4025. Production of supplies and munitions: hours and pay of 
laborers and mechanics. 

[During a national emergency declared by the President, the regular 
working hours of laborers and mechanics' of the Department of the 
Army producing military supplies or munitions are 8 hours a day or 
40 hours a week. However, under regulations prescribed by the Secre- 
tary of the Army these hours may be exceeded. Each laborer or me- 
chanic who works more than 40 hours in a workweek shall be paid at a 
rate not less than one and one-half times the regular hourly rate for 
each hour in excess of 40.] 



107 

Chapter 873.r-CIVILIAN EMPLOYEES 

******* 
[§9025. Production of supplies and munitions: hours and pay of 
laborers and mechanics. 

[During a national emergency declared by the President, the regular 
working hours of laborers and mechanics of the Department of the Air 
Force producing military supplies or munitions are 8 hours a day or 40 
hours a week. However, under regulations prescribed by the Secretary 
of the Air Force these hours may be exceeded. Each laborer or me- 
chanic who works more than 40 hours in a workweek shall be paid at a 
rate not less than one and one-half times the regular hourly rate for 
each hour in excess of 40.} 

TITLE 12.— BANKS AND BANKING, UNITED STATES 

CODE 

******* 
Chapter 2.— NATIONAL BANKS 

ORGANIZATION AND GENERAL PROVISIONS 



[§ 95. Emergency limitations and restrictions on business of mem- 
bers of Federal Reserve System. 

|Tn order to provide for the safer and more effective operation of 
the national banking system and the Federal Reserve System, to pre- 
serve for the people the full benefits of the currency provided for by 
the Congress through the national banking system and the Federal 
Reserve System, and to relieve interstate commerce of the burdens and 
obstructions resulting from the receipt on an unsound or unsafe basis 
of deposits subject to withdrawal by check, during such emergency 
period as the President of the United States by proclamation may 
prescribe, no member bank of the Federal Reserve System shall trans- 
act any banking business except to such extent and subject to such 
regulations, limitations, and restrictions as may be prescribed by the 
Secretary of the Treasury, with the approval of the President. Any 
individual, partnership, corporation, or association, or any director, 
officer, or employee thereof, violating any of the provisions of this 
section shall be deemed guilty of a misdemeanor and, upon conviction 
thereof, shall be fined not more than $10,000 or, if a natural person, 
may, in addition to such fine, be imprisoned for a term not exceeding 
ten years. Each day that any such violation continues shall be deemed 
a separate offense. 

[§95a. Regulation of transactions in foreign exchange of gold 
and silver; property transfers; vested interests, en- 
forcement and penalties. 

[(1) During the time of war or during any other period of national 
emergency declared by the President, the President may, through any 
agency that he may designate, or otherwise, and under such rules and 
regulations as he may prescribe, by means of instructions, licenses, or 
otherwise — 



108 



[(A) investigate, regulate, or prohibit any transactions in for- 
eign exchange, transfers of credit or payments between, by, 
through, or to any banking institution, and the importing, export- 
ing, hoarding, melting, or earmarking of gold or silver coin or 
bullion, currency or securities, and 

[(B) investigate, regulate, direct and compel, nullify, void, 
prevent or prohibit, any acquisition holding, withholding, use, 
transfer, withdrawal, transportation, importation or exportation 
of, or dealing in, or exercising any right, power, or privilege with 
respect to, or transactions involving, any property in which any 
foreign country or a national thereof has any interest, 
by any person, or with respect to any property, subject to the jurisdic- 
tion of the United States ; and any property or interest of any foreign 
country or national thereof shall vest, when, as, and upon the terms, 
directed by the President, in such agency or person as may be desig- 
nated from time to time by the President, and upon such terms and 
conditions as the President may prescribe such interest or property 
shall be held, used, administered, liquidated, sold, or otherwise dealt 
with in the interest of and for the benefit of the United States, and 
such designated agency or person may perform any and all acts inci- 
dent to the accomplishment or furtherance of these purposes ; and the 
President shall, in the manner hereinabove provided, require any per- 
son to keep a full record of, and to furnish under oath, in the form of 
reports or otherwise, complete information relative to any act or trans- 
action referred to in this section either before, during, or after the 
completion thereof, or relative to any interest in foreign property, or 
relative to any property in which any foreign country or any national 
thereof has or has had any interest, or as may be otherwise necessary 
to enforce the provisions of this section, and in any case in which a 
report could be required, the President may, in the manner herein- 
above provided, require the production, or if necessary to the national 
security or defense, the seizure, of any books of account, records, con- 
tracts, letters, memoranda, or other papers, in the custody or control of 
such person ; and the President may, in the manner hereinabove pro- 
vided, take other and further measures not inconsistent herewith for 
the enforcement of this section. 

[(2) Any payment, conveyance, transfer, assignment, or delivery 
of property or interest therein, made to or for the account of the 
United States, or as otherwise directed, pursuant to this section or 
any rule, regulation, instruction, or direction issued hereunder shall to 
the extent thereof be a full acquittance and discharge for all purposes 
of the obligation of the person making the same ; and no person shall be 
held liable in any court for or in respect to anything done or omitted in 
good faith in connection with the administration of, or in pursuance 
of and in reliance on, this section, or any rule, regulation, instruction, 
or direction issued hereunder. 

[(3) As used in this section, the term "United States" means the 
United States and any place subject to the jurisdiction thereof: Pro- 
vided, however, That the foregoing shall not be construed as a limita- 
tion upon the power of the President, which is conferred, to prescribe 
from time to time, definitions, not inconsistent with the purposes of 
this section, for any or all of the terms used in this section. Whoever 



109 



willfully violates any of the provisions of this section or of any 
license, order, rule or regulation issued thereunder, shall, upon con- 
viction, be fined not more than $10,000, or, if a natural person, may be 
imprisoned for not more than ten years, or both ; and any officer, direc- 
tor, or agent of any corporation who knowingly participates in such 
violation may be punished by a like fine, imprisonment, or both. As 
used in this section, the term "person" means an individual, partner- 
ship, association, or corporation.] 



Chapter 3.— FEDERAL RESERVE SYSTEM 

DEFINITIONS, ORGANIZATION, AND GENERAL PROVISIONS AFFECTING 

SYSTEM 



[§249. Regulation of consumer credit 

[After November 1, 1947, the Board of Governors of the Federal 
Reserve System shall not exercise consumer credit controls pursuant 
to Executive Order Numbered 8843, and no such consumer credit con- 
trols shall be exercised after such date except during the time of war 
beginning after August 8, 1947, or any national emergency declared 
by the President after August 8, 1947.] 

******* 

Chapter 13.— NATIONAL HOUSING 

[§ 1703. Insurance of financial institutions. 

[(a) The Secretary is authorized and empowered upon such terms 
and conditions as he may prescribe, to insure banks, trust companies, 
personal finance companies, mortgage companies, building and loan 
associations, installment lending companies and other such financial 
institutions, which the Secretary finds to be qualified by experience or 
facilities and approves as eligible for credit insurance, against losses 
which they may sustain as a result of loans and advances of credit, 
and purchases of obligations representing loans and advances of 
credit, made by them on and after July 1, 1939, and prior to June 30, 
1973, for the purpose of (i) financing alterations, repairs, and im- 
provements upon or in connection with existing structures, and the 
building of new structures, upon urban, suburban, or rural real prop- 
erty (including the restoration, rehabilitation, rebuilding, and re- 
placement of such improvements which have been damaged or de- 
stroyed by earthquake, conflagration, tornado, hurricane, cyclone, 
flood, or other catastrophe) , by the owners thereof or by lessees of such 
real property under a lease expiring not less than six months after the 
maturity of the loan or advance of credit ; and for the purpose of (ii) 
hnancmg the purchase of a mobile home to be used by the owner as 
his principal residence. In no case shall the insurance granted b V the 
Secretary under this section to any such financial institution on loans, 
advances of credit, and purchases made by such financial institution 

thl S ^i PUrP ° S ? °? ******* Jul y 1> 1939, exceed 10 per centum of 
the total amount of such loans, advances of credit, and purchases: 



110 



Provided, That with respect to any loan, advance of credit, or pur- 
chase made after the effective date of the Housing Act of 1954, the 
amount of any claim for loss on any such individual loan, advance of 
credit or purchase paid by the Secretary under the provisions of this 
section to- a lending institution shall not exceed 90 per centum of such 
loss.] 

* * * * * * * 

[§ 1705. Allocation of funds. 

[For the purposes of carrying out the provisions of this subchap- 
ter and subchapters II and III of this chapter the President, in his 
discretion, is authorized to provide such funds or any portion 
thereof by allotment to the Secretary from any funds that are avail- 
able, or may hereafter be made available, to the President for emer- 
gency purposes.] 

******* 
[§ 1748b. Insurance of mortgages. 
[(a) Aggregate amount of insurance; termination date. 

[In order to assist in relieving the acute shortage and urgent need 
for family housing which now exists at or in areas adjacent to military 
installations because of uncertainty as to the permanency of such in- 
stallations and to increase the supply of necessary family housing ac- 
commodations for personnel at such installations, the Secretary is 
authorized, upon application of the mortgagee, to insure mortgages 
(including advances on such mortgages during construction) which 
are eligible for insurance as hereinafter provided, and, upon such 
terms as the Secretary may prescribe, to make commitments for so 
insuring such mortgages prior to the date of their execution or dis- 
bursement thereon : Provided, That the aggregate amount of principal 
obligations of all mortgages insured under this subchapter (except 
mortgages insured pursuant to the provisions of this subchapter in 
effect prior to August 11, 1955) shall not exceed $2,300,000,000 : And 
provided further, That the limitation in section I7l5h of this title 
shall not apply to this subchapter : And provided further, That no 
more mortgages shall be insured under this section after October 1, 
1962, except pursuant to a commitment to insure before such date, 
and not more than twenty-eight thousand family housing units shall 
be contracted for after June 30, 1959, pursuant to any mortgage in- 
sured under this section after such date.] 



TITLE 16.— CONSERVATION, UNITED STATES CODE 

******* 

Chapter 12A.— TENNESSEE VALLEY AUTHORITY 

******* 

§831d. Directors; maintenance and operation of plant for pro- 
duction, sale, and distribution of fertilizer and power. 

The board is authorized — 
(a) * * *. 



Ill 



[(m) Xo products of the Corporation except ferrophosphorus shall 
be sold for use outside of the United States, its Territories and pos- 
sessions, except to the United States Government for the use of its 
Army and Navy, or to its allies in case of war or, until six months 
after the termination of the national emergency proclaimed by the 
President on December 16, 1950, or until such earlier date or dates as 
the Congress by concurrent resolution or the President may provide 
but in no event after April 1, 1953, to nations associated with the 
United States in defense activities.] 



TITLE 18.— CRIMES AND CRIMINAL PROCEDURE, 
UNITED STATES CODES 



Chapter 67.— MILITARY AND NAVY 

[§ 1383. Restrictions in military areas and zones. 

[Whoever, contrary to the restrictions applicable thereto, enters, 
remains in, leaves, or commits any act in any military area or military 
zone prescribed under the authority of an Executive order of the 
President, by the Secretary of the Army, or by any military com- 
mander designated by the Secretary of the Army, shall, if it appears 
that he knew or should have known of the existence and extent of the. 
restrictions or order and that his act was in violation thereof, be fined 
not more than $5,000 or imprisoned not more than one year, or both.] 



TITLE 26.-INTERNAL REVENUE CODE, UNITED STVTES 

CODE 



Chapter 1.— NORMAL TAXES AND SURTAXES 

Part VI.— Itemized Deductions for Individuals and Corporations 

******* 
[§ 168, Amortization of emergency facilities. 
t(a) General rule. 

[Every person, at his election, shall be entitled to a deduction with 
respect to the amortization of the adjusted basis (for determining 
gam) of any emergency facility (as defined in subsection (d)), based 
on a period of 60 months. Such amortization deduction shall be an 
amount, with respect to each month of such period within the taxable 
year, equal to the adjusted basis of the facility at the end of such 
month divided by the number of months (including the month for 
which the deduction is computed) remaining in the period. Such ad- 
justed basis at the end of the month shall be computed without regard 
to the amortization deduction for such month. The amortization de- 
duction above provided with respect to any month shall, except to the 
extent provided in subsection (f ) , be in lieu of the depreciation deduc- 



112 



tion with respect to such facility for such month provided by section 
167. The 60-month period shall begin as to any emergency facility, at 
the election of the taxpayer, with the month following the month in 
which the facility was completed or acquired, or with the succeeding 
taxable year. 

[(b) Election of amortization. 

[The election of the taxpayer to take the amortization deduction 
and to begin the 60-month period with the month following the month 
in which the facility was completed or acquired, or with the taxable 
year succeeding the taxable year in which such facility was completed 
or acquired, shall be made by filing with the Secretary or his delegate, 
in such manner, in such form, and within such time, as the Secretary 
or his delegate may by regulations prescribe, a statement of such 
election. 

[(c) Termination of amortization deduction. 

[A taxpayer which has elected under subsection (b) to take the 
amortization deduction provided in subsection (a) may, at any time 
after making such election, discontinue the amortization deduction 
with respect to the remainder of the amortization period, such discon- 
tinuance to begin as of the beginning of any month specified by the 
taxpayer in a notice in writing filed with the Secretary or his delegate 
before the beginning of such month. The depreciation deduction pro- 
vided under section 167 shall be allowed, beginning with the first 
month as to which the amortization deduction does not apply and the 
taxpayer shall not be entitled to any further amortization deduction 
with respect to such emergency facility. 

t(d) Definitions. 

[(1) Emergency facility. 

For purposes of this section, the term "emergency facility" means 
any facility, land, building, machinery, or equipment, or any part 
thereof, the construction, reconstruction, erection, installation, or 
acquisition of which was completed after December 31, 1949, and 
with respect to which a certificate under subsection (e) has been made. 
Jn no event shall an amortization deduction be allowed in respect of 
any emergency facility for any taxable year unless a certificate in 
respect thereof under this paragraph shall have been made before the 
filing of the taxpayer's return for such taxable year. 

[(2) Emergency period. 

[For purposes of this section, the term "emergency period" means 
'the period beginning January 1, 1950, and ending on the date on which 
the President proclaims that the utilization of a substantial portion of 
the emergency facilities with respect to which certifications under sub- 
section (e) have been made is no longer required in the interest of na- 
tional defense. 

[(e) Determination of adjusted basis of emergency facility. 

[In determining, for purposes of subsection (a) or (g) , the adjusted 
basis of an emergency facility — 

J[(l) Certification on or before August 22, 1957. 

[In the case of a certificate made on or before August 22, 1957, there 
shall be included only so much of the amount of the adjusted basis of 



113 



such facility (computed without regard to this section) as is properly 
attributable to such construction, reconstruction, erection, installation, 
or acquisition after December 31, 1949, as the certifying authority, 
designated by the President by Executive order, has certified as neces- 
sary in the interest of national defense during the emergency period, 
and only such portion of such amount as such authority has certified 
as attributable to defense purposes. Such certification shall be under 
such regulations as may be prescribed from time to time by such certi- 
fying authority with the approval of the President. An application for 
a certificate must be filed at such time and in such manner as may be 
prescribed by such certifying authority under such regulations, but in 
no event shall such certificate have any effect unless an application 
therefor is filed before March 24, 1951, or before the expiration of six 
months after the beginning of such construction, reconstruction, erec- 
tion, or installation or the date of such acquisition, whichever is later. 

[(2) Certifications after August 22, 1957. 

[In the case of a certificate made after August 22, 1957, there shall 
be included only so much of the amount of the adjusted basis of such 
facility (computed without regard to this section) as is properly 
attributable to such construction, reconstruction, erection, installa- 
tion, or acquisition after December 31, 1949, as the certifying author- 
ity designated by the President by Executive order, has certified is to 
be used — 

[(A) to produce new or specialized defense items or compo- 
nents of new or specialized defense items (as defined in para- 
graph (4) ) during the emergency period, 

[(B) to provide research, developmental, or experimental serv- 
ices during the emergency period for the Department of Defense 
(or one of the component departments of such Department), or 
for the Atomic Energy Commission, as a part of the national 
defense program, or 

[(C) to provide primary processing for uranium ore or uranium 
concentrate under a program of the Atomic Energy Commission 
for the development of new sources of uranium ore or uranium 
concentrate, 
and only such portion of such amount as such authority has certified is 
attributable to the national defense program. Such certification shall 
be under such regulations as may be prescribed from time to time by 
such certifying authority with the approval of the President. An ap- 
plication for a certificate must be filed at such time and in such man- 
ner as may be prescribed by such certifying authority under such 
regulations but in no event shall such certificate have any effect unless 
an application therefor is filed before the expiration of six months after 
the beginning of such construction, reconstruction, erection, or instal- 
lation or the date of such acquisition. For purposes of the preceding 
sentence, an application which was timely filed under this subsection 
on or before August 22, 1957, and which was pending on such date, 
shall be considered to be an application timely filed under this 
paragraph. 

[(3) Separate facilities; special rule. 

[After the completion or acquisition of any emergency facility with 
respect to which a certificate under paragraph (1) or (2) has been 
made, any expenditure (attributable to such facility and to the period 



114 



after such completion or acquisition) which does not represent con- 
struction, reconstruction, erection, installation, or acquisition included 
in such certificate, but with respect to which a separate certificate is 
made under paragraph (1) or (2), shall not be applied in adjustment 
of the basis of such facility, but a separate basis shall be computed 
therefor pursuant to paragraph (1) or (2), as the case may be, as if 
it were a new and separate emergency facility. 

[(4) Definitions. 

[For purposes of paragraph (2) — 
[(A) New or specialized defense item. 

[The term "new or specialized defense item" means only an item 
(excluding services) — 

[(i) which is produced, or will be produced, for sale to the 
Department of Defense (or one of the component departments of 
such Department), or to the Atomic Energy Commission, for use 
in the national defense program, and 

[(ii) for the production of which existing productive facilities 
are unsuitable because of its newness or of its specialized defense 
features. 

[(B) Component of new or specialized defense item. 

[The term component of a new or specialized defense item means 
only an item — 

[(i) which is, or will become a physical part of a new or spe- 
cialized defense item, and 

[(ii) for the production of which existing productive facilities 
are unsuitable because of its newness or of its specialized defense 
features. 

[(5) Limitation with respect to uranium ore or uranium concen- 
trate processing facilities. 

[No certificate shall be made under paragraph (2) (C) with respect 
to any facility unless existing facilities for processing the uranium ore 
or uranium concentrate which will be processed by such facility are 
unsuitable because of their location. 

[(f) Depreciation deduction. 

[If the adjusted basis of the emergency facility (computed without 
regard to this section) is in excess of the adjusted basis computed under 
subsection (e), the depreciation deduction provided by section 167 
shall, despite the provisions of subsection (a) of this section, be al- 
lowed with respect to such emergency facility as if its adjusted basis 
for the purpose of such deduction were an amount equal to the amount 
of such excess. 

[(g) Payment by United States of unamortized cost of facility. 

[If an amount is properly includible in the gross income of the 
taxpayer on account of a payment with respect to an emergency facil- 
ity and such payment is certified as provided in paragraph (1), then, 
at the election of the taxpayer in its return for the taxable year in 
which such amount is so includible — 

[(1) The amortization deduction for the month in which such 
amount is so includible shall (in lieu of the amount of the deduc- 
tion for such month computed under subsection (a)) be equal to 



115 



the amount so includible but not in excess of the adjusted basis 
of the emergency facility as of the end of such month (computed 
without regard to any amortization deduction for such month). 
Payments referred to in this subsection shall be payments the 
amounts of which are certified, under such regulations as the 
President may prescribe, by the certifying authority designated 
by the President as compensation to the taxpayer for the un- 
amortized cost of the emergency facility made because — 

[(A) a contract with the United States involving the use 
of the facility has been, terminated by its terms or by can- 
cellation, or 

[(B) the taxpayer had reasonable ground (either from 

provisions of a contract with the United States involving the 

use of the facility, or from written or oral representations 

made under authority of the United States) for anticipating 

future contracts involving the use of the facility, which future 

contracts have not been made. 

[(2) In case the taxpayer is not entitled to any amortization 

deduction with respect to the emergency facility, the depreciation 

deduction allowable under section 167 on account of the month 

in which such amount is so includible shall be increased by such 

amount, but such deduction on account of such month shall not 

be in excess of the adjusted basis of the emergency facility as 

of the end of such month (computed without regard to any 

amount allowable, on account of such month, under section 167 

of this paragraph) . 

[(h) Life tenant and remainderman. 

[In the case of property held by one person for life with remainder 
to another person, the deduction shall be computed as if the life tenant 
were the absolute owner of the property and shall be allowable to the 
life tenant. 

[(i) Termination. 

[No certificate under subsection '(e) shall be made with respect to 
any emergency facility after December 31, 1959.] 



TITLE 41.— PUBLIC CONTRACTS, UNITED STATES CODE 



[Chapter 2.— TERMINATION OF WAR CONTRACTS 

[§ 101. Declaration of policy. 

[The Congress declares that the objectives of this chapter are — 
[(a) to facilitate maximum war production during the war, 
and to expedite reconversion from war production to civilian pro- 
duction as war conditions permit; 

[(b) to assure to prime, contractors and subcontractors, small 
and large, speedy and equitable final settlement of claims under 
terminated war contracts, and adequate interim financing until 
such final settlement; 



116 



[(c) to assure uniformity among Government agencies in basic 
policies and administration with respect 'to such termination set- 
tlements and interim financing ; 

[(d) to facilitate the efficient use of materials, manpower, and 
facilities for war and civilian purposes by providing prime con- 
tractors and subcontractors with notice of termination of their 
war contracts as far in advance of the cessation of work there- 
under as is feasible and consistent with the national security ; 

[(e) to assure the expeditious removal from the plants of 
prime contractors and subcontractors of termination inventory 
not to be retained or sold by the contractor ; 

[(f) to use all practicable methods compatible with the fore- 
going objectives to prevent improper payments and to detect and 
prosecute fraud. 

[§102. Surveillance by Congress. 

[(a) To assist the Congress in appraising the administration of 
this chapter and in developing such amendments or related legisla- 
tion as may further be necessary to accomplish the objectives of this 
chapter, the appropriate committees of the Senate and the House of 
Representatives shall study .each report submitted to the Congress 
under this chapter and shall otherwise maintain continuous surveil- 
lance of the operations of the Government agencies under this chapter. 

[(b) Repealed. Oct. 31, 1951, ch. 654, § 1 (110) , 65 Stat. 705. 

[§ 103. Definitions. 

[As used in this chapter — 

[(a) The term "prime contract" means any contract, agreement, or 
purchase order heretofore or hereafter entered into by a contracting 
agency and connected with or related to the prosecution of the war; 
and the term "prime contractor" means any holder of * one or more 
prime contracts. 

[(b) The term "subcontract" means any contract, agreement, or 
purchase order heretofore or hereafter entered into to perform any 
work, or to make or furnish any material to the extent that such work 
or material is required for the performance of any one or more prime 
contracts or of any one or more other subcontracts ; and the term "sub- 
contractor" means any holder of one or more subcontracts. 

[(c) The term "war contract" means a prime contract or a subcon- 
tract; and the term "war contractor" means any holder of one or more 
war contracts. 

[(d) The terms "termination," "terminate/' and "terminated" refer 
to the termination or cancellation, in whole or in part, of work under 
a prime contract for the convenience or at the option of the Govern- 
ment (except for default of the prime contractor) or of work under 
a subcontract for any reason except the default of the subcontractor. 

[(e) The term "material" includes any article, commodity, ma- 
chinery, equipment, accessory, part, component, assembly, work in 
process, maintenance, repair, and operating supplies, and any product 
of any kind. 

[(f) The term "Government agency" means any Executive depart- 
ment of the Government, or any administrative unit or subdivision 
thereof, any independent agency or any corporation owned or con- 



117 



trolled by the United States in the Executive branch of the Govern- 
ment, and includes any contracting agency. 

[(g) The term "contracting agency" means any Government 
agency which has been or hereafter may be authorized to make con- 
tracts pursuant to section 611 of Appendix to Title 50, and includes 
the Reconstruction Finance Corporation and any corporation or- 
ganized pursuant to the Reconstruction Finance Corporation Act, 
and the Secretary of Commerce. 

[(h) The term "termination claim" means any claim or demand by 
a war contractor for fair compensator for the termination of any war 
contract and any other claim under a terminated war contract, which 
regulations prescribed under this chapter authorize to be asserted and 
settled in connection with any termination settlement. 

[(i) The term "interim financing" includes advance payments, par- 
tial payments, loans, discounts, advances, and commitments in connec- 
tion therewith, and guaranties of loans, discounts, advances and com- 
mitments in connection therewith and any other type of financing 
made in contemplation of or related to termination of war contracts. 

[(j) The term "Administrator" means the Administrator of Gen- 
eral Services. 

[(k) The term "person" means any individual, corporation, part- 
nership, firm, association, trust, estate, or other entity. 

[(1) The term "termination inventory" means any materials (in- 
cluding a proper part of any common materials) , properly allocable to 
the terminated portion of a war contract, except any machinery or 
equipment subject to a separate contract specifically governing the use 
or disposition thereof. 

[(m) The term "final and conclusive," as applied to any settle- 
ment, finding, or decision, means that such settlement, finding, or de- 
cision shall not be reopened, annulled, modified, set aside, or disre- 
garded by any officer, employee, or agent of the United States or in any 
suit, action, or proceeding except as provided in this chapter. 

[§104. Administration of chapter; rules and regulations; 
personnel. 

[(a) Repealed. Pub. L. 89-554. § 8(a), Sept. 6, 1066, 80 Stat. 652. 
[(b) In order to insure uniform and efficient administration of the 
provisions of this chapter, the Administrator of General Services, 
subject to such provisions, by general orders or general regulations — 
[(1) shall prescribe policies, principles, methods, procedures, 
and standards to govern the exercise of the authority and dis- 
cretion and the performance of the duties and functions of all 
Government agencies under this chapter; and 
- [(2) may require or restrict the exercise of any such authority 
and discretion, or the performance of any such duty or function, 
to such extent as he deems necessary to carry out the provisions of 
this chapter. 
[(c) The exercise of any authority or discretion and the perform- 
ance of any duty or function, conferred or imposed on any Govern- 
ment agency by this chapter, shall be subject to such orders' and regu- 
lations prescribed by the Administrator of General Services pursuant 
to subsection (b) of this section. Each Government agency shall carry 



118 



out such orders and regulations of the Administrator of General Serv- 
ices expeditiously, and shall issue such regulations with respect to its 
operations and procedures as may be necessary to carry out the poli- 
cies, principles, methods, procedures, and standards prescribed by the 
Administrator of General Services. Any Government agency may 
issue such further regulations not inconsistent with the general orders 
or regulations of the Administrator of General Services as it deems 
necessary or desirable to carry out the provisions of this chapter. 

[(d) The Administrator of General Services -may, within the limits 
of funds which may be made available, employ and fix the compensa- 
tion of necessary personnel in accordance with the provisions of the 
civil-service laws and chapter 51 and subchapter III of chapter 53 of 
Title 5, and make expenditures for supplies, facilities, and services 
necessary for the performance of his functions under this chapter. 
Without regard to the provisions of the civil-service laws, he may 
employ certified public accountants, qualified cost accountants, indus- 
trial engineers, appraisers, and other experts, and contract with cer- 
tified public accounting firms and qualified firms of engineers in the 
discharge of the duties imposed upon him and in furtherance of the 
objectives and policies of this chapter. The Administrator of General 
Services shall perform the duties imposed upon him through the per- 
sonnel and facilities of the contracting agencies and other established 
Government agencies, to the extent that this does not interfere with 
the function of the Administrator of General Services to insure uni- 
form and efficient administration of the provisions of this chapter. 

[(e) All orders and regulations prescribed by the Administrator of 
General Services or any Government agency under this chapter shall 
be published in the Federal Register. 

[§ 105. Contract Settlement Advisory Board ; composition ; duties. 

[There is created a Contract Settlement Advisory Board, with 
which the Administrator of General Services shall advise and consult. 
The Board shall be composed of the Administrator of General Serv- 
ices who shall act as its Chairman, and of the Secretary of the Army, 
the Secretary of the Navy, the Chairman of the Maritime Commis- 
sion, the Secretary of State, the chairman of the board of directors of 
the Reconstruction Finance Corporation, Secretary of Commerce, and 
the Attorney General or any alternate or representative designated by 
any of them. The Administrator of General Services shall request 
other Government agencies to participate in the deliberations of the 
Board whenever matters specially affecting them are under 
consideration. 

[§ 106. Basis for settlement of termination claims. 

[(a) Priority to private contractors. 

[It is the policy of the Government, and it shall be the responsibility 
of the contracting agencies and the Administrator of General Serv- 
ices to provide war contractors with speedy and fair compensation 
for the termination of any war contract, in accordance with and sub- 
ject to the provisions of this chapter, giving priority to contractors 
whose facilities are privately owned or privately operated. Such fair 
compensation for the termination of subcontracts shall be based on 
the same principles as compensation for the termination of prime 
contracts. 



119 



[(b) Establishment of methods and standards. 

[Each contracting agency shall establish methods and standards, 
suitable to the conditions of various war contractors, for determining 
fair compensation for the termination of war contracts on the basis of 
actual, standard, average, or estimated costs, or of a percentage of the 
contract price based on the estimated percentage of completion of 
work under the terminated contract, or on any other equitable basis, as 
it deems appropriate. To the extent that such methods and standards 
require accounting, they shall be adapted, so far as practicable, to the 
accounting systems used by war contractors, if consistent with recog- 
nized commercial accounting practice. 

[(c) Conclusiveness of settlement. 

[Any contracting agency may settle all or any part of any termina- 
tion claim under any war contract by agreement with the war con- 
tractor, or by determination of the amount due on the claim or part 
thereof without such agreement, or by any combination of these 
methods. Where any such settlement is made by agreement', the set- 
tlement shall be final and conclusive, except (1) to the extent other- 
wise agreed in the settlement; (2) for fraud; (3) upon renegotiation 
to eliminate excessive profits under section 1191 of Appendix to Title 
50, unless exempt or exempted under such section; or (4) by mutual 
agreement before or after payment. Where any such settlement is 
made by determination without agreement, it shall likewise be final 
and conclusive, subject to the same exceptions as if made by agree- 
ment, unless the war contractor appeals or brings suit in accordance 
with section 113 of this title : Provided. That no settlement agreement 
hereunder involving payment to a war contractor of an amount in 
excess of $50,000 (or such lesser amount as the Administrator of Gen- 
eral Services may from time to time determine) shall become binding 
upon the Government until the agreement has been . reviewed and 
approved by a settlement review board of three or more members 
established by the contracting agency in the bureau, division, regional 
or district office, or other unit of the contracting agency authorized 
to make such settlement, or in the event of disapproval by the settle- 
ment review board, unless approved by the head of sucli bureau, di- 
vision, regional or district office, or other unit. Failure of the settle- 
ment review board to act upon any settlement within thirty days after 
its submission to the board shall operate as approval by the board. 
The sole function of settlement review boards shall be to determine the 
over-all reasonableness of proposed settlement agreements from the 
point of view of protecting the interests of the Government. In deter- 
mining, for purposes of this subsection, whether review of any settle- 
ment agreement is required because of the amounts involved, no de- 
duction shall be made on account of credits for property chargeable 
to the Government or for advance or partial payments, but amounts 
payable under such settlement agreement for completed articles or 
work at the contract price and for the discharge of the termination 
claims of subcontractors shall be deducted. 

[(d) Allowable costs. 

[Except as hereinafter provided, the methods and standards estab- 
lished under subsection (b) of this section for determining fair com- 
pensation for termination claims .which are not settled by agreement 



66-474 O - 76 - 9 



120 



shall be designed to compensate the war contractor fairly for the 
termination of the war contract, taking into account — 

[(1) the direct and indirect manufacturing, selling and dis- 
tribution, administrative and other costs and expenses incurred 
by the war contractor which are reasonably necessary for the 
performance of the war contract and properly allocable to the 
terminated portion thereof under recognized commercial account- 
ing practices; and 

[(2) reasonable costs and expenses of settling termination 
claims of subcontractors related to the terminated portion of the 
war contract ; and 

[(3) reasonable accounting, legal, clerical, and other costs and 
expenses incident to termination and settlement of the terminated 
war contract ; and 

[(4) reasonable costs and expenses of removing, preserving, 
storing and disposing of termination inventories; and 

[(5) such allowance for profit on the preparations made and 
work done for the terminated portion of the war contract as is 
reasonable under the circumstances ; and 

[(6) interest on the termination claims in accordance with sub- 
section (f ) of this section; and 

[(7) the contract price and all amounts otherwise paid or pay- 
able under the contract. 
[The following shall not be included as elements of cost : 

[(i) Losses on other contracts, or from sales or exchanges of 
capital assets, fees and other expenses in connection with reorgani- 
zation or recapitalization, antitrust or Federal income-tax liti- 
gation, or prosecution of Federal income-tax claims or other 
claims against the Government (except as provided in paragraph 
(3) of this subsection) : losses on investments; provisions for con- 
tingencies; and premiums on life insurance where the contractor 
is the beneficiary. 

[(ii) The expense of conversion of the contractor's facilities to 
uses other than the performance of the contract. 

[(iii) Expenses due to the negligence or willful failure of the 
contractor to discontinue with reasonable promptness the incur- 
ring of expenses after the effective date of the termination notice. 
£(iv) Costs incurred in respect to facilities, materials, or serv- 
ices purchased or work done in excess of the reasonable quantita- 
tive requirements of the entire contract. 
[The failure specifically to mention in this subsection any item of 
cost is not intended to imply that it should be allowed or disallowed. 
The Administrator of General Services may interpret the provisions 
of this subsection and may provide for the inclusion or exclusion of 
other costs in accordance with recognized commercial accounting 
practices. 

[Where the small size of claims or the nature of production or per- 
formance or other factors make it impracticable to apply the principles 
stated in this subsection to any class of settlements which are subject 
to this subsection, the contracting agencies may establish alternative 
methods and standards for determining fair compensation for that 
class of termination claims. The aggregate amount of compensation 



121 



allowed in accordance with this subsection (excluding amounts al- 
lowed under paragraphs (3) and (4) of this subsection) shall not ex- 
ceed the total contract price reduced by the amount of payments other- 
wise made or to be made under the contract. 

[(e) Settlement by agreement. 

[In order to carry out the objectives of this chapter, termination 
claims shall be settled by agreement to the maximum extent feasible 
and the methods and standards established under subsection (b) of 
this section shall be designed to facilitate such settlements. To the 
extent that he deems it practicable to do so without impeding expe- 
ditious settlements, the Administrator of General Services shall re- 
quire the contracting agencies to take into account the factors enu- 
merated in subsection (d) of this section in establishing methods and 
standards for determining fair compenastion in the settlement of ter- 
mination claims by agreement. 

[(f) Interest. 

[Each contracting agency shall allow and pay interest on the 
amount due and unpaid from time to time on any termination claim 
under a prime contract at the rate of 2y 2 per centum per annum for 
the period beginning thirty days after the date fixed for termination 
and ending with the date of final payment, except that (1) if the 
prime contractor unreasonably delays the settlement of his claim, in- 
terest shall not accrue for the period of such delay, (2) if interest for 
the period after termination on any advance payment or loan, made or 
guaranteed by the Government, has been waived for the benefit of the 
contractor, the amount of the interest so waived allocable to the termi- 
nated contract or the terminated part of the contract shall be deducted 
from the interest otherwise payable hereunder, and (3) if after de- 
livery of findings by a contracting agency, the contractor appeals or 
sues as provided in section 113 of this title, interest shall not accrue 
after the thirtieth day following the delivery of the findings on any 
amount allowed by such findings, unless such amoimt is increased 
upon such appeal or suit. In approving, ratifying, authorizing, or 
making termination settlements with subcontractors, each contract- 
ing agency shall allow interest on the termination claim of the sub- 
contractor on the same basis and subject to the same conditions as are 
applicable to a prime contractor. 

[(g) Amendment of contracts. 

[Where any war contract does not provide for or provides- against 
such fair compensation for its termination, the contracting agency, 
either before or after its termination, shall amend such war contract 
by agreement with the war contractor, or shall authorize, approve, or 
ratify an amendment of such war contract by the parties thereto, to 
provide for such fair compensation. 

[§ 107. Settlement of subcontractors' claims. 

[(a) Conclusiveness of settlement. 

[Where, in connection with the settlement of any termination claim 
by a contracting agency, any war contractor makes settlements of the 
termination claims of his subcontractors, the contracting agency shall 



122 



limit or omit its review of such settlements with subcontractors to 
the maximum extent compatible with the public interest. Any contrac- 
ting agency (1) may approve, ratify, or authorize such settlements 
with subcontractors upon such evidence, terms, and conditions as it 
deems proper; (2) shall vary the scope and intensity of its review of 
such settlements according to the reliability of the war contractor, the 
size, number, and complexity of such claims, and other relevant fac- 
tors; and (3) shall authorize war contractors to make such settlements 
with subcontractors without review by the contracting agency, when- 
ever the reliability of the war contractor, the amount or nature of the 
claims, or other reasons appear to the contracting agency to justify 
such action. Any such settlement of a subcontract approved, ratified, 
or authorized by a contracting agency shall be final and conclusive 
as to the amount due to the same extent as a settlement >under subsec- 
tion (c) of section 106 of this title, and no war contractor shall be liable 
to the United States on account of any amounts paid thereon except 
for his own fraud. 

[(b) Supervision of payments to war contractors. 

[Whenever any contracting agency is satisfied of the inability of a 
war contractor to meet his obligations it shall exercise supervision or 
control over payments to the war contractor on account of termination 
claims of subcontractors of such war contractor to such extent and 
in such manner as it deems necessary or desirable for the purpose 
of assuring the receipt of the benefit of such payments by the 
subcontractors. 

[(c) Group settlements. 

[The Administrator of General Services shall prescribe policies 
and methods for the settlement as a group, or otherwise, by any con- 
tracting agency of some or all of the termination claims of a war con- 
tractor under war contracts with one or more (1) bureaus or divisions 
within a contracting agency, (2) contracting agencies, or (3) prime 
contractors and subcontractors, to the extent he deems such action 
necessary or desirable for expeditious and equitable settlement of such 
claims. After consulting with the contracting agencies concerned, the 
Administrator of General Services may provide for assigning any war 
contractor to a contracting agency for such settlement, and such agency 
shall have authority to settle, on behalf of any other contracting 
agency, some or all of the termination claims of such war contractor. 

[(d) Direct settlement by Contracting agency. 

[Any contracting agency may settle directly termination claims of 
subcontractors to the extent that it deems such action necessary or 
desirable for the expeditious and equitable settlement of such claims. 
In making such termination settlements any contracting agency may 
discharge the claim of the subcontractor by payment or may purchase 
such claim, and may agree to assume, or indemnify the subcontractor 
against, any claims by any person in connection with such claim or the 
termination settlement. Any contracting agency undertaking to settle 
the termination claim of any subcontractor shall deliver to the subcon- 
tractor and the war contractor liable to him written notice stating its 
acceptance of responsibility for settling his claim and the conditions 



123 



applicable thereto, which may include the release, or assignment to the 
contracting agency, of his claim against the war contractor liable to 
him ; upon consent thereto by the subcontractor, the Government shall 
become liable for the settlement of his claims upon the conditions 
specified in the notice. 

[(e) Amount of settlement. 

[Any contracting agency may make settlements with subcontractors 
in accordance with any of the provisions of this chapter without re- 
gard to any limitation on the amount payable by the Government to 
the prime contractor. 

[(f) Equitable payments. 

[If any contracting agency determines that in the circumstances of 
a particular case equity and good conscience require fair compensa- 
tion for the termination of a war contract to be paid to a subcontractor 
who has been deprived of and cannot otherwise reasonably secure such 
fail compensation, the contracting agency concerned may pay such 
compensation to him although such compensation already has been 
included and paid as part of a settlement with another war contractor. 

[§ 108. Interim financing. 

[(a) Prime contractors. 

[It is the policy of the Government, and it shall be the responsibility 
of the contracting agencies and the Administrator of General Services, 
in accordance with and subject to the provisions of this chapter, to pro- 
vide war contractors having any termination claim or claims, pending 
their settlement, with adequate interim financing, within thirty days 
after proper application therefor. 

[(b) Method of financing; amounts payable. 

[Each contracting agency shall, to the greatest extent it deems prac- 
ticable, make available interim financing through loans and discounts, 
and commitments and guaranties in connection therewith, in contem- 
plation of or related to termination of war contracts. Where interim 
financing is made by advance payments or partial payments, it shall r 
insofar as practicable, consist of the following: 

[( 1 ) An amount equal to 100 per centum of the amount pay- 
able, at the contract price, on account of acceptable items com- 
pleted prior to the termination date under the terms of the 
contract, or completed thereafter with the approval of the con- 
tracting agency : plus 

[(2) An amount equal to 90 per centum of the cost of raw 
materials purchased parts, supplies, direct labor, and manu- 
facturing overhead allocable to the terminated portion of the war 
contract ; plus 

[(3) A reasonable percentage of other allowable costs, includ- 
ing administrative overhead, allocable to the terminated portion 
of the war contract not included in the foregoing; plus 

[(4) Such additional amounts, if any, as the contracting 
agency deems necessary to provide the war contractor with ade- 
quate interim financing. 

[(5). In lieu of the costs referred to in clauses (2) and (3) of 
this subsection, where a detailed ascertainment of such costs is 
not suitable to the conditions of any war contractor and is apt to 



124 



cause delay in the obtaining of interim financing by him, that 
portion of such interim financing shall be equal to an amount not 
greater than 90 per centum of the estimated costs which are allo- 
cable to the terminated part or parts of the war contract or group 
of war contracts, and are ascertained in accordance with such 
methods and standards as the Administrator of General Services 
shall prescribe. 

[(6) There shall be deducted from the amount of such interim 
financing any unliquidated balances of advance and partial pay- 
ments theretofore made to such war contractor, which are allo- 
cable to the terminated war contract or the terminated part of the 
war contract. 

[(c) Evidence to support financing. 

[The Administrator of General Services shall prescribe (1) the 
types of estimates, certificates, or other evidence to be required to sup- 
port such interim financing; (2) the terms and conditions upon which 
such interim financing shall be made including the use of standard 
forms for agreements with respect to such interim financing to the 
extent practicable; (3) the classes of cases in which such interim fi- 
nancing shall be refused; and (4) such methods of supervision and 
control over such interim financing as he deems necessary or desirable 
to assure adequate and speedy interim financing to subcontractors of 
the war contractor. 

[(d) Penalty for overstatement of claims. 

[In case of an overstatement by any war contractor of the amount 
due on his termination claim or claims in connection with any interim 
financing under this chapter, such contractor shall pay to the United 
States, as a penalty, an amount equal to 6 per centum of the amount of 
the overstatement, but the Administrator of General Services may 
suspend or modify any such penalty if in his opinion the imposition 
thereof would be inequitable. Any penalty may be deducted from any 
amounts due the war contractor upon such termination claim or 
claims, or otherwise, or may be collected from the war contractor by 
suit. The obligation to pay any penalty imposed and to repay any 
interim financing made or assumed by the United States under this 
chapter shall constitute a debt due to the United States within the 
meaning of section 191 of Title 31. 

[(e) Advance payments as part of termination settlement. 

[Any contracting agency may allow any advance pa}Tnents, previ- 
ously made or authorized by it in connection with the performance of 
a war contract, to be used for payments and expenses related to the 
termination settlement of such contract, upon such terms and condi- 
tions as it deems necessary or appropriate to protect the interest of 
the Government. 
[(f) Liquidation of loans, etc., prior to final settlement. 

[No interim financing shall be made by any contracting agency 
under this chapter unless the terms of such financing provide for the 
liquidation by the war contractor of all loans, discounts, advance pay- 
ments, or partial payments thereunder not later than the time of final 
payment of the amount due on the settlement of the termination claim 
or claims of the war contractor involved or such time thereafter as the 
contracting agency deems necessary for the liquidation of such interim 
financing in an orderly manner. 



125 



[(g) Settlement of claims; validation of prior financing. 

[Any contracting agency may settle, upon such terms and condi- 
tions as it deems proper, any claim or obligation due by or to the 
Government arising from or related to any interim financing made, 
acquired, or authorized by it. Any interim financing made, acquired, 
or authorized by any contracting agency before the effective date of 
this chapter shall be* valid to the extent it would be authorized under 
the provisions of this chapter if made after its effective date. 

£§ 109. Advance or partial payments to subcontractors; excessive 
payments, interest, liability of war contractor. 

[(a) Any contracting agency may make advance or partial pay- 
ments to any war contractor on account of any termination claim or 
claims, and "may authorize, approve, or ratify any such advance or 
partial payments by any war contractor to his subcontractors, upon 
such conditions as it deems necessary to insure compliance with the 
provisions of subsection (b) of this section. Each contracting agency 
shall make final payments from time to time on partial settlements or 
on settlements fixing a minimum amount due before complete settle- 
ment, or as tentative payments before any settlement of the claim or 
claims. 

[(b) Where any such advance or partial payment is made to any 
war contractor by any contracting agency or by another war contrac- 
tor under this section, except a final payment on a partial settlement, 
any amount in excess of the amount finally determined to be due 
on the termination claim shall be treated as a loan from the Govern- 
ment to the war contractor receiving it, and shall be payable upon 
demand together with a penalty computed at the rate of 6 per centum 
per annum, for the period from the date such excess advance or partial 
payment is received to the date on which such excess is repaid or 
extinguished. Where the advance or partial payment was made by a 
war contractor and authorized, approved, or ratified by any contract- 
ing agency, the war contractor making it shall not be liable for any such 
excess payment in the absence of fraud on his part and shall receive 
payment or credit from the Government for the amount of such excess 
payment. 

[§ 110. Guarantee of loans, advances, etc., for financing termina- 
tion of contracts. 

[(a) Any contracting agency is authorized — 

[(1) to enter into contracts with any Federal Reserve bank, or 
other public or private financing institution, guaranteeing such 
financing institution against loss of principal or interest on loans, 
discounts, or advances or on commitments in connection there- 
with, which such financing institution may make to any war con- 
tractor or to any person who is or has been engaged in perform- 
ing any operation deemed by such contracting agency to be 
connected with or related to war production, for the purpose of 
financing such war contractor or other person in connection with 
or in contemplation of the termination of one or more such war 
contracts or operations : and 

[(2) to make, enter into contracts to make, or to participate 
with any Government agency, any Federal Reserve bank or pub- 



126 

lie or private financing institution in making loans, discounts, or 
advances, or commitments in connection therewith, for the pur- 
pose of financing any such war contractor or other person m con- 
nection with or in contemplation of the termination of such war 
contracts or operations. 
[(b) Any such loan, discount, advance, guaranty, or commitment 
in connection therewith may be secured by assignment of, or cove- 
nants to assign, some or all of the rights of such war contractor or 
other person in connection with the termination of such war contracts 
or operations, or in such other manner as the contracting agency may 

orescribe. 

[(c) Subject to such regulations as the Board of Governors of the 
Federal Reserve System may prescribe with the approval of the Ad- 
ministrator of General Services, any Federal Reserve bank is au- 
thorized to act, on behalf of the contracting agencies, as fiscal agent of 
the United States in carrying out the purposes of this chapter. 

[(d) This section shall not limit or affect any authority of any con- 
tracting agency, under any other statute, to make loans, discounts, or 
advances, or commitments in connection therewith or guaranties 
thereof. 
[§ 111. Advance notice of termination. 

[(a) In order to facilitate the efficient use of materials, manpower, 
and facilities for war and civilian purposes, each contracting agency — 
[(1) shall provide its prime contractors with notice of termina- 
tion of their prime contracts as far in advance of the cessation of 
work thereunder as is feasible and consistent with the national 
security without permitting unneeded production or performance ; 
[(2) shall establish procedures whereby prime contractors 
shall provide affected subcontractors with immediate notice of 
termination; and 

[(3) shall permit the continuation of some or all of the work 
under a terminated prime contract whenever the agency deems 
that such continuation will benefit the Government or is necessary 
to avoid substantial injury to the plant or property. 
[(b) Whenever a contracting agency hereafter directs a prime con- 
tractor to cease or suspend all or a substantial part of the work under 
a prime contract, without terminating the contract, then, unless the 
contract provides otherwise, (1) the contracting agency shall com- 
pensate the contractor for reasonable costs and expenses resulting 
from such cessation or suspension, and (2) if the cessation or suspen- 
sion extends for thirty days or more, the contractor may elect to treat 
it as a termination by delivering written notice of his election so to do 
to the contracting agency, at any time before the contracting agency 
directs the prime contractor to resume work under the contract. 

[(c) The Administrator of General Services shall have no authority 
under this chapter to regulate or control the classes of contracts to be 
terminated by the contracting agencies. 

[§112. Removal and storage of materials, 
[(a) Termination inventory. 

[It is the policy of the Government, upon the termination of any 
war contract, to assure the expeditious removal from the plant of the 



127 



fear contractor of the termination inventory not to be retained or sold 

by the war contractor. 

[(b) Statement on material of inventory. 

[Any war contractor may submit to the contracting agency con- 
cernecf or to any other Government agency designated by the Admin- 
istrator of General Services, one or more statements showing the mate- 
rials which such war contractor claims to be termination inventory 
under one or more war contracts and desires to have removed by the 
Government. Such statements shall be prepared in such form and 
detail, shall be submitted in such manner, through the prime con- 
tractor or otherwise, and shall be supported by such certificates or 
other data, as may be prescribed under this chapter. 
[(c) Removal and storage by Government agency. 

[Within sixty days after the submission of any such statement by 
a Avar contractor, or such shorter period as may be prescribed under 
this chapter, or within such longer period as the war contractor may 
agree, the Government agency concerned (1) shall arrange, upon 
such terms and conditions as may be agreed, for the storage by the 
war contractor on his own premises or elsewhere of all such claimed 
termination inventory which the war contractor does not retain or 
dispose of, except any part which may be determined not to be al- 
locable to the terminated war contract or contracts, or (2) shall remove 
from the plant or plants of the war contractor all of such claimed 
termination inventory not retained, disposed of, or stored by the war 
contractor or determined not to be allocable to the terminated war 
contract or contracts. 

[(d) Removal and storage by war contractor. 

[Upon the failure of the Government so to arrange for storage by 
the war contractor or to remove any termination inventory within the 
period specified under subsection (c) of this section, the war con- 
tractor, subject to regulations prescribed under this chapter, may 
remove some or all of such termination inventory from his plant or 
plants and may store it on his own premises or elsewhere for the 
account and at the risk and expense of the Government, using reason- 
able care for its transportation and preservation. If any war con- 
tractor intends so to remove any claimed termination inventory, he 
shall deliver to the Government agency concerned written notice of 
the date fixed for removal and a statement showing the quantities and 
condition of the materials so to be removed, certified on behalf of the 
war contractor to have been prepared in accordance with a concurrent 
physical inventory of such materials. Such notice and statement shall 
be delivered at least twenty days in advance of the date fixed for re- 
moval and may be delivered before or after the expiration of the 
period specified under subsection (c) of this section. If the Govern- 
ment agency fails to check such materials, at or before the time of 
their removal by the war contractor, a certificate of the war contractor 
specifying the materials shown on such statement which were so re- 
moved, and filed with the Government agency concerned within thirty 
days after the date fixed for removal, shall constitute prima facie 
evidence against the United States as to the quantities and condition 
of the materials so removed, and the fact of their removal. 



128 



[(e) Acquisition by Government agency of inventory material; 
liability. 

[Notwithstanding any other provisions of law, but subject to sub- 
section (h) of this section, the contracting agency concerned or the 
Administrator of General Services, or any Government agency desig- 
nated by him, on behalf of the United States, may, by the exercise of 
any contract right or otherwise, acquire and take possession of any 
termination inventory of any war contractor, and any materials re- 
moved by the Government or stored for its account under subsections 
(c) and (d) of this section, whether or not such materials are finally 
determined not to constitute termination inventory. With respect to 
any such materials, the Government shall be liable to any war con- 
tractor concerned only for their return to such war contractor or for 
their disposal value at the time of their removal or for the proceeds 
realized by the Government from their disposal, at the election of the 
Government agency concerned, unless the Government agency and the 
war contractor a^ree or have agreed on a different basis. Any amount 
so paid or payable to a war contractor for materials allocable to a 
terminated war contract shall be credited against the termination 
claim under such contract but shall not otherwise affect the amount 
due on the claim, unless the Government agency concerned and the 
war contractor agree or have agreed otherwise. Any materials to 
which the Administrator of General Services takes title under this 
section shall be delivered for disposal to any appropriate Government 
agency authorized to make such disposal. 

[(f) Postponement or delay of termination settlement. 

[No contracting agency shall postpone or delay any termination 
settlement beyond the period specified in subsection (c) of this section 
for the purpose of awaiting disposal by the war contractor or the 
Government of any termination inventory reported in accordance 
with subsection (b) of this section. 

[(g) Government-owned machinery. 

[Whenever any war contractor no longer requires, for the perform- 
ance of any war contract, any Government-owned machinery, tools, or 
equipment installed in his plant for the performance of one or more 
war contracts, the Government agency concerned, upon written de- 
mand by the war contractor, and within sixty days after such demand 
or such other period as may be prescribed under this chapter, and 
upon such conditions as may be so prescribed, shall remove or provide 
for the removal of such machinery, tools, or equipment from such 
plant, unless the Government agency concerned and the war contractor, 
by facilities contract or otherwise, have made or make other provisions 
for the retention, storage, maintenance, or disposition of such ma- 
chinery, tools or equipment. The Government agency concerned may 
waive or release on behalf of the United States any obligation of the 
war contractor with respect to such machinery, tools, or equipment 
upon such terms and conditions as the agency deems appropriate. 
Upon the failure of the Government so to remove or provide for re- 
moval of any such machinery, tools, or equipment, the war contrac- 
tor, subject to regulations prescribed under this chapter, may remove 



129 



all or part of such machinery, tools, or equipment from his plant and 
may store it on his own premises or elsewhere, for the account and at 
the risk and expense of the Government, using reasonable care for its 
transportation and preservation. 

[(h) Limitation on Government acquisition of inventories. 

[Nothing in this chapter shall limit or affect the authority of the 
Department of the Army, Department of the Air Force, Navy De- 
partment, or Maritime Commission, respectively, to take over any 
termination inventories and to retain them for their use for any pur- 
pose or to dispose of such termination inventories for the purpose of 
war production, or to authorize any war contractor to retain or dispose 
of such termination inventories for the purpose of war production. 

[(i) Removal and storage by war contractor at own risk. 

[Nothing in this section shall be construed to prevent the removal 
and storage of any termination inventory by any war contractor, at his 
own risk, at any time after termination of any war contract to which 
it is allocable. 

[§ 113. Appeals. 

[(a) Failure to settle claims by agreement; preparation of find- 
ings ; notice to war contractor. 

[Whenever the contracting agency responsible for settling any 
termination claim has not settled the claim by agreement or has so 
settled only a part of the claim, (1) the contracting agency at any time 
may determine the amount due on such claim or such unsettled part, 
and prepare written findings indicating the basis of the determination, 
and deliver a copy of such findings to the war contractor, or (2) if the 
termination claim has been submitted in the manner and substantially 
the form prescribed under this chapter, the contracting agency, upon 
written demand by the war contractor for such findings, shall deter- 
mine the amount due on the claim or unsettled part and prepare and 
deliver such findings to the war contractor within ninety days after 
the receipt by the agency of such demand. In preparing such findings, 
the contracting agency may require the war contractor to furnish such 
information and to submit to such audits as may be reasonably neces- 
sary for that purpose. Within thirty days after the delivery of any 
such findings, the contracting agency shall pay to the war contractor 
at least 90 per centum of the amount thereby determined to be due, 
after deducting the amount of any outstanding interim financing 
applicable thereto. 

[(b) Rights of war contractor. 

[Whenever any war contractor is aggrieved by the findings of a 
contracting agency on his claim or part thereof or by its failure to 
make such findings in accordance with subsection (a) of this section, 
he may bring suit against the United States for such claim or such 
part thereof, in the Court of Claims or in a United States district 
court, in accordance with subsection (20) of section 41 of Title 28, 
except that, if the contracting agency is the Reconstruction Finance 
Corporation, or any corporation organized pursuant to the Recon- 
struction Finance Corporation Act, or any corporation owned or con- 



130 



trolled by the United States, the suit shall be brought against such 
corporation in any court of competent jurisdiction in accordance with 
existing law. 

[(c) Procudure. 

[Any proceeding under subsection (b) of this section shall be gov- 
erned by the following conditions : 

[(1) When any contracting agency provides a procedure within 
the agency for protest against such findings or for other appeal there- 
from by the war contractor, the war contractor, before proceeding 
under subsection (b) of this section, (i) in his discretion may resort 
to such procedure within the time specified in his contract or, if no 
time is specified, within thirty days after the delivery to him of the 
findings; and (ii) shall resort to such procedure for protest or other 
appeal to the extent required by the Administrator of General Serv- 
ices, but failure of the contracting agency to act on any such required 
protest or appeal within thirty days shall operate as a refusal by the 
agency to modify its findings. Any revision of the findings by the con- 
tracting agency, upon protest or appeal within the agency, shall be 
treated as the findings of the agency for the purpose of appeal or suit 
under subsection (b) of this section. Notwithstanding any contrary 
provision in any war contract, no war contractor shall be required to 
protest or appeal from such findings within the contracting agency 
except in accordance with this paragraph. 

[(2) A war contractor may initiate proceedings in accordance with 
subsection (b) of this section (i) within ninety days after delivery 
to him of the findings by the contracting agency, or (ii) in case of 
protests or appeal within the agency, within ninety days after the 
determination of such protest or appeal, or (iii) in case of failure to 
deliver such findings, within one year after his demand therefor. If he 
does not initiate such proceedings within the time specified, he shall be 
precluded thereafter from initiating any proceedings in accordance 
with subsection (b) of this section, and the findings of the contracting 
agency shall be final -and conclusive, or if no findings were made, he 
shall be deemed to have waived such termination claim. 

[(3) Notwithstanding any contrary provision in any war contract, 
the court shall not be bound by the findings of the contracting agency, 
but shall treat such findings as prima facie correct, and the burden 
shall be on the war contractor to establish that the amount due on his 
claim or part thereof exceeds the amount allowed by the findings of the 
contracting agency. Whenever the court finds that the war contractor 
failed to negotiate in good faith with the contracting agency for the 
settlement of his claim or part thereof before appeal or suit thereon, 
or failed to furnish to the agency any information reasonablv re- 
quested by it regarding his termination claim or part thereof, or failed 
to prosecute diligently any protest or appeal required to be taken 
under subsection (c) (1) (ii) of this section, the court (i) may refuse 
to receive in evidence any information not submitted to the contracting 
agency; (ii) may deny interest on the claim or part thereof for such 
period as it deems proper; or (iii) may remand the case to the con- 
tracting agency for further proceedings upon such terms as the court 
may prescribe. Unless the case is remanded, the court shall enter the 






131 



appropriate award or judgment on the basis of the law and facts, and 
may increase or decrease the amount allowed by the findings of the 
contracting agency. 

[(4) Any such proceedings shall not affect the authority of the 
contracting agency concerned to make a settlement of the termination 
claim, or any part thereof, by agreement with the war contractor at 
any time before such proceedings are concluded. 

[(d) Omitted. 

[(e) Arbitration. 

[The contracting agency responsible for settling any claim and the 
war contractor asserting the claim, by agreement, may submit all or 
any part of the termination claim to arbitration, without regard to 
the amount in dispute. Such arbitration proceedings shall be governed 
by the provisions of United States Arbitration Act to the same extent 
as if authorized by an effective agreement in writing between the 
Government and the war contractor. Any such arbitration award shall 
be final and conclusive upon the United States to the same extent as 
a settlement under subsection (c) of section 106 of this title, but shall 
not be subject to approval by any settlement review board. 
[(f) Conclusiveness of decisions. 

[Whenever any dispute exists between any war contractor and a 
subcontractor regarding any termination claim, either of them, by 
agreement with the other, may submit the dispute to a contracting 
agency for mediation or arbitration whenever authorized by the 
agency or required by the Administrator of General Services. 

[Any award or decision in such proceedings shall be final and con- 
clusive as to the parties so submitting any such dispute and shall not 
be questioned by the United States in settling any related claim, in the 
absence of fraud or collusion. 

[§ 114. Court of Claims. 

[(a) Appointment of auditors. 

[For the purpose of expediting the adjudication of termination 
claims, the Court of Claims is authorized to appoint not more than 
ten auditors. 

[(b) Procedure. 

[The Court of Claims, on motion of either of the parties, or on its 
own motion, may summon any and all persons with legal capacity to be 
sued to appear as a party or parties in any suit or proceeding or any 
nature whatsoever pending in said court to assert and defend their in- 
terests, if any, in such suits or proceedings, within such period of time 
prior to judgment as the Court of Claims shall prescribe. If the name 
and address of any such person is known or can be ascertained by rea- 
sonable diligence, and if he resides within the jurisdiction of the United 
States, he shall be summoned to appear by personal service; but if any 
such person resides outside of the jurisdiction of the United States, or is 
unknown, or if for any other good and sufficient reason appearing to the 
court personal service cannot be had, he may be summoned by publica- 
tion, under such rules as the court may adopt, together with a copy of 
the summons mailed by registered mail to such person's last known ad- 



132 



.e Court of Claims may. upon motion of the Attorney General, 
in any suit or proceeding where there may be any number of persons 
having possible interests therein, notify such persons to appear to as- 
sert and defend such interests. I'pon failure so to appear, any and all 
ms or interests in claims of any such person against the United 
States, in respect of the subject matter of such suit or proceeding, shall 
forever be barred and the court shall have jurisdiction to enter judg- 
ment pro confesso upon any claim or contingent claim asserted on be- 
half of the United States against any person who. having been duly 
served with summons, fails to respond thereto, to the same extent and 
with like etfect as if such person had appeared and had admitted the 
truth of all allegations made on behalf of the United States. Upon 
appearance by any peison pursuant to any such summons or notice, the 
case as to such person shall, for all purposes, be treated as if an in- 
dependent proceeding has been instituted by such person pursuant to 
section 250 of Title 28, and as if such independent proceeding had then 
been consolidated, for purposes of trial and determination, with the 
se in res t c f which the summons or notice was issued, except that 
the United States shall not be heard upon any counterclaims, claims 
for damages or other demands whatsoever against such person, other 
than claims and contingent claims for the recovery of money hereafter 
paid by the United States in respect of the transaction or matter which 
constitute - - subject matter of such case, unless and until such person 
shall -assert therein a claim, or an interest in a claim, against the United 
States, and the Court of Claims shall have jurisdiction to adjudicate. 
as between any and all adverse claimants, their respective several in- 
sts in any matter in suit and to award several judgments in accord- 
ance therewith. 

[(c) Jurisdiction. 

[ The jurisdiction of the Court of Claims shall not be affected by 
-this chapter except to the extent necessary to give effect to this chap- 
ter, and no person shall recover judgment on any claim, or on any 
interest in any claim, in said court which such person would not 
have had a right to assert in said court if this section had not been 
enacted. 

[§ 115. Personal financial liability of contracting officers. 

[ i Whenever any payment is made from Government funds to 
any war contractor or ot: n as an advance, partial or final pay- 

ment on any termination claim, or pursuant to any loan, guaranty, or 
agreement for the purchase of any loan, or any commitment in con- 
nection therewith, entered into by the Government, no officer or other 
Government agent authorizing or approving such payment or settle- 
ment, or certifying the voucher for such payment, or making the 
payment in accordance with a duly certified voucher, shall be per- 
sonally liable for such payment, in the absence of fraud on his part. In 
settling the accounts of any disbursing officer, the General Account- 
ing Office shall allow any such disbursements made by him notwith- 
standing any other provisions of law. 

[ h For the purpose of making termination settlements or interim 
financing, any Government agency is authorized to rely upon such 
certificate r contractors as it deems proper and to permit war 



133 



contractors and other persons to rely upon such certificates without 
financial liability in the absence of fraud on their pan. 

[§116. Functions of General Accounting Office; certification of 
fraudulent settlements to Department of Justice; re- 
ports to Congress. 

[(a) Any other provision of law notwithstanding, the function of 
the General Accounting Office with respect to any termination settle- 
ment made, authorized, ratified, or approved by a contracting agency 
shall be confined to determining, after final settlement, (1) whether 
the settlement payments to the war contractor were made in accord- 
ance with the settlement, and (2) whether the records transmitted 
to it. or other information.- warrant a reasonable belief that the settle- 
ment was induced by fraud. For this purpose the General Accounting 
Office shall have the authority to examine any records maintained by 
any contracting agency or by any war contractor relating to any 
termination settlement. 

[(b) Whenever the Comptroller General is convinced that any set- 
tlement was induced by fraud, he shall so certify, together with all 
the facts relating thereto, to the Department of Justice, to the Ad- 
ministrator of General Services, and to the contracting agency con- 
cerned. Upon receipt of such certificate (1) the Department of .Justice 
shall make an investigation to determine whether such settlement was 
induced by fraud, and ( '1 ) until the Department of Justice notifies 
the contracting agency that in its opinion the facts do not support the 
belief that the settlement was induced by fraud, the contracting 
agency, by set-off or otherwise, may withhold, from amounts owing 
to the war contractor by the United States under such settlement or 
otherwise, the amount of the settlement, or the portion thereof, which 
in the opinion of the Comptroller General as stated in his certificate, 
was affected by the fraud. In any such case the Department of Justice 
shall take such action as it deems appropriate to recover payments 
made to such war contractor. The General Accounting Office shall not 
suspend credit to any disbursing officer on any disbursements made 
by him under such settlement in the absence of fraud on his part. 

[(c) The Comptroller General may investigate the settlements com- 
pleted by each contracting agency for the purpose of reporting to 
the Congress from time to time on — 

[(1) whether the settlement methods and procedures employed 
by such agency are of a kind and type designed to result in expe- 
ditious and fair settlements in accordance with and subject to the 
provisions of this chapter and the orders and regulations of the 
Administrator of General Services: 

[(2) whether such methods and procedures are followed by 
such agency with care and efficiency : and 

[(3) whether such methods and procedures adequately protect 
the interest of the Government. 
[If in any such report the Comptroller General shall find that the 
settlement methods and procedures fail to meet the foregoing stand- 
ards, he shall make suggestions and recommendations tosuclfagency 
for the improvement of "such methods and procedures and to the^Con- 
gress for any additional legislation needed to carry out the policies of 



134 



this chapter. At least thirty days before filing any such report with 
the Congress, the Comptroller General shall deliver a copy thereof 
to the agency concerned and the Administrator of General Services, 
and shall forward to the Congress together with such report any com- 
ments of such agency with respect thereto. 

[(d) The jurisdiction of the Comptroller General of the United 
States shall not be affected by this chapter except to the extent neces- 
sary to give effect to the specific provisions thereof. 

[§ 117. Defective, informal, and quasi contracts; termination date 
for filing claims. 

[(a) Where any person has arranged to furnish or furnished to a 
contracting agency or to a war contractor- any materials, services, or 
facilities related to the prosecution of the war, without a formal con- 
tract, relying in good faith upon the apparent authority of an officer 
or agent of a contracting agency, written or oral instructions, or any 
other request to proceed from a contracting agency, the contracting 
agency shall pay such person fair compensation therefor. 

[(b) Whenever any formal or technical defect or omission in any 
prime contract, or in any grant of authority to an officer or agent of 
a contracting agency who ordered any materials, services, and facili- 
ties might invalidate the contract or commitment, the contracting 
agency (1) shall not take advantage of such defect or omission; (2) 
shall amend, confirm, or ratify such contract or commitment without 
consideration in order to cure such defect or omission; and (3) shall 
make a fair settlement of any obligation thereby created or incurred 
by such agency, whether expressed or implied, in fact or in law, or in 
the nature of an implied or quasi contract. 

[(c) Where a contracting agency fails to settle by agreement any 
claim asserted under this section, the dispute shall be subject to the 
provisions of section 113 of this title. 

[(d) The Administrator of General Services shall require each con- 
tracting agency to formalize all such obligations and commitments 
within such period as the Administrator of General Services deems 
appropriate. No person shall be entitled to recover compensation, to 
receive a settlement of any alleged obligation, or to obtain the benefit 
of any amendment, confirmation, ratification, or formalization of 
any alleged contract or commitment under the provisions of subsec- 
tions (a), (b), (c), or (d) of this section, unless such person shall, on 
or before one hundred and eighty days after June 28, 1954, have filed 
a claim therefor with the contracting agency. 

[§ 118. Administration. 

[(a) Records and forms. 

[The Administrator of General Services shall establish policies for 
such supervision and review within the contracting agencies of termi- 
nation settlements and interim financing as he deems necessary and 
appropriate to prevent and detect fraud and to assure uniformity in 
administration and to provide for expeditious settlements. For this 
purpose he shall prescribe ( 1 ) such records to be prepared by the con- 
tracting agencies and by war contractors as he deems necessary in con- 
nection with such settlements and interim financing; and (2) the 
records in connection therewith to be transmitted to the General Ac- 



135 



counting Office. He shall seek to reduce the amount of record keeping, 
reporting, and accounting in connection with the settlement of termi- 
nation claims and interim financing to the minimum compatible with 
the reasonable protection of the public interest. Each contracting 
agency shall prescribe forms for use by war contractors in connection 
with termination settlements and interim financing to the extent it 
deems necessary and feasible. 

[(b) Repealed. Oct. 31, 1951, ch. 654, § 1 (111) 65 Stat. 705. 

[(c) Advance notice on cut-backs. 

[The Administrator of General Services, by regulation, shall pro- 
vide for making available to any interested Government agency such 
advance notice and other information on cut-backs in war production 
resulting from terminations or failures to renew or extend war con- 
tracts, as he deems necessary and appropriate. 

[(d) Investigations. 

[The Administrator of General Services shall make such investiga- 
tions as he deems necessary or desirable in connection with termina- 
tion settlements and interim financing. For this purpose he may utilize 
the facilities of any existing agencies and if he determines that the 
facilities of existing agencies are inadequate, he may establish a unit 
in the General Services Administration to supplement and facilitate 
the work of existing agencies. He shall report to the Department of 
Justice any information received by him indicating any fraudulent 
practices, for appropriate action. 

[(e) Certification of fraudulent settlements to Department of 
Justice. 

[Whenever any contracting agency or the Administrator of Gen- 
eral Services believes that any settlement was induced by fraud, the 
agency or Administrator of General Services shall report the facts to 
the Department of Justice. Thereupon, (1) the Department of Justice 
shall make an investigation to determine whether such settlement was 
induced by fraud, and (2) until the Department of Justice notifies the 
contracting agency that in its opinion the facts do not support the be- 
lief that the settlement was induced by fraud, the contracting agency, 
by set-off or otherwise, may withhold, from amounts owing to the war 
contractor by the United States under such settlement or otherwise, 
the amount of the settlement, or the portion thereof, which, in its 
opinion, was affected by the fraud. In any such case the Department 
of Justice shall take such action as it deems appropriate to recover 
payments made to such war contractor. 

[§ 119. Fraudulent claims, vouchers, statements, etc. ; jurisdiction. 

[Every person who makes or causes to be made, or presents or 
causes to be presented to any officer, agent, or employee of any Gov- 
ernment agency any claim, bill, receipt, voucher, statement, account, 
certificate, affidavit, or deposition, knowing the same to be false, 
fraudulent, or fictitious or knowing the same to contain or to be 
based on any false, fraudulent, or fictitious statement or entry, 
or who shall cover up or conceal any material fact, or who shall use or 
engage in any other fraudulent trick, scheme, or device, for the pur- 



66-474 O - 76 - 10 



136 



pose of securing or obtaining, or aiding to secure or obtain, for any 
person any benefit, payment, compensation, allowance, loan, advance, 
or emolument from the United States or any Government agency in 
connection with the termination, cancellation, settlement, payment, 
negotiation, renegotiation, performance, procurement, or award of a 
contract with the United States or with any other person, and every 
person who enters into an agreement, combination, or conspiracy so to 
do, (1) shall pay to the United States an amount equal to 25 per 
centum of any amount thereby sought to be wrongfully secured or ob- 
tained but not actually received, and (2) shall forfeit and refund any 
such benefit, payment, compensation, allowance, loan, advance, and 
emolument received as a result thereof and (3) shall in addition pay 
to the United States the sum of $2,000 for each such act, and double 
the amount of any damage which the United States may have sus- 
tained by reason thereof, together with the costs of suit. 

[The several district courts of the United States, the District of 
Columbia, the several district courts of the Territories of the United 
States, within whose jurisdictional limits the person, or persons, doing 
or committing such act, or any one of them, resides or shall be found, 
shall, wheresoever such act may have been done or committed, have 
full power and jurisdiction to hear, try, and determine such suit, and 
such person or persons as are not inhabitants of or found within the 
district in which suit is brought may be brought in by order .of the 
court to be served personally or by publication or in such other reason- 
able manner as the court may direct. 

[§ 120. Powers and duties of contracting agencies. 

[(a) Limitation. 

[Each contracting agency shall have authority, notwithstanding 
any provisions of law other than contained in this chapter, (1) to 
make any contract necessary and appropriate to carry out the provi- 
sions of this chapter; (2) to amend by agreement any existing con- 
tract, either before or after notice of its termination, on such terms 
and to such extent as it deems necessary and appropriate to carry out 
the provisions of this chapter; and (3) in settling any termination 
claim, to agree to assume, or indemnify the war contractor against, 
any claims by any person in connection with such termination claims 
or settlement. This subsection shall not limit or affect in any way any 
authority of any contracting agency under First War Powers Act, 
1941, or under any other statute. 

[(b) Evidence required; conclusiveness of determinations. 

[Any contracting agency may prescribe the amount and kind of 
evidence required to identify any person as a war contractor, or any 
contract, agreement, or purchase order as a war contract for any of 
the purposes of this chapter. Any determination so made that any per- 
son is a war contractor, or that any contract, agreement, or purchase 
order is a war contract, shall be final and conclusive for any of the 
purposes of this chapter. 

[(c) Appropriations. 

[There are authorized to be appropriated such sums as may be 
necessary for administering the provisions of this chapter. 



137 



[(d) Validation of prior settlements. 

[All policies and procedures relating to termination of war con- 
tracts, termination settlements, and interim financing, prescribed by 
the Secretary of the Treasury or any contracting agency, in effect 
upon the effective date of this chapter, and not inconsistent with this 
chapter, shall remain in full force and effect unless and until super- 
seded by the Administrator of General Services in accordance with 
this chapter, or by regulations of the contracting agency not incon- 
sistent with this chapter or the policies prescribed by the Administra- 
tor of General Services. 

[(e) Impairment of contract. 

[Nothing in this chapter shall be deemed to impair or modify any 
war contract or any term or provision of any war contract or any 
assignment of any claim under a war contract, without the consent of 
the parties thereto, if the war contract, or the term, provision, or 
assignment thereof, is otherwise valid. 

[(f) Aid to war contractors. 

[Any contracting agency may authorize or direct its officers and 
employees, as a part of their official duties, to advise, aid, and assist 
war contractors in preparing and presenting termination claims, in 
obtaining interim financing, and in related matters, to such extent as 
it deems desirable. Such advice, aid or assistance shall not constitute a 
violation of section 198 of Title 18 or of any other law, provided the 
officer or employee does not receive therefor benefit or compensation of 
any kind, directly or indirectly, from any war contractor. 

[§ 121. Administrator of General Services ; additional duties. 

[In addition to his other functions under this chapter, the Admin- 
istrator of General Services shall — 

[(a) promote the training of personnel for termination settle- 
ment and interim financing by contracting agencies, war contrac- 
tors, and financing institutions ; 

[(b) Omitted. 

[(c) promote decentralization of the administration of term- 
ination settlements and interim financing by fostering delegation 
of authority within contracting agencies and to war contractors, 
to the extent he deems necessary and feasible ; and 

[(d) consult with war contractors through advisory commit- 
tees or such other methods as he deems appropriate. 

[§ 122. Use of appropriated funds. 

[Any contracting agency is authorized — 

[(a) to use for interim financing, the payment of claims, and 
for any other purposes authorized in this chapter any funds which 
have heretofore been appropriated or allocated or which may 
hereafter be appropriated or allocated to it, or which are or may 
become available to it, for such purposes or for the purposes of 
war production or war procurement ; 

[(b) to use any such funds appropriated, allocated, or avail- 
able to it for expenditures for or in behalf of any other contract- 
ing agency for the purposes authorized in this chapter; and 



138 



[(c) to determine by agreement, joint estimate, or any other 
method authorized by the Administrator of General Services, the 
part of any expenditure made pursuant to subsection (b) of this 
section to be paid by each contracting agency concerned and to 
make transfers of funds between such contracting agencies ac- 
cordingly. Transfers of funds between appropriations carried 
upon the books of the Treasury shall be made by the Administra- 
tor of General Services in accordance with joint requests of the 
contracting agencies involved. 

[§ 123. Delegation of authority by Administrator of General 
Services. 

[(a) The Administrator of General Services may delegate any au- 
thority and discretion conferred upon him by this chapter to such 
officers and agencies of the General Services Administration as he 
may designate, and may delegate such authority and discretion, upon 
such terms and conditions as he may prescribe, to the head of any Gov- 
ernment agency to the extent necessary to the handling and solution 
of problems peculiar to that agency. 

[(b) The head of any Government agency may delegate any author- 
ity and discretion conferred upon him or his agency by or pursuant 
to this chapter to any officer, agent, or employee of such agency or to 
any other Government agency, and may authorize successive redelega- 
tions of such authority and discretion. 

[(c) Any two or more Government agencies may exercise jointly 
any authority and discretion conferred upon each of them individu- 
al lv by or pursuant to this chapter. 

[(d) Nothing in this chapter shall prevent the Administrator of 
General Services from exercising any authority conferred upon him 
by any other statute. 

[§124. Effective date; applicability to lend-lease contracts. 

[(a) This chapter shall become effective twenty days after July 1, 
1944. With the exception of the provisions of paragraphs (b)-(e) 
of section 112 of this title, and sections 106 and 110, and 113 of this 
title, this chapter shall be applicable in the case of any terminated 
war contract which has been finally settled at or before the effective 
date of this chapter. 

[(b) Nothing in this chapter shall limit or affect any authority 
conferred by sections 411 to 419 of Title 22, or Acts supplemental 
thereto. 

[§ 125. Exemption of certain contracts outside continental United 
States or in Alaska. 

[Subject to policies prescribed by the Administrator of General 
Services, any contracting agency may exempt from some or all of the 
provisions of this chapter (a) any war contract made or to be per- 
formed outside the continental limits of the United States or in 
Alaska, or (b) any termination inventory situated outside of the con- 
tinental limits of the United States or in Alaska, or (c) any modifica- 
tion of a war contract pursuant to its terms for the purpose of chang- 
ing plans or specifications applicable to the work without substantially 
reducing its extent. J 



139 



TITLE 42.— THE PUBLIC HEALTH AND WELFARE, 
UNITED STATES CODE 



Chapter 6A.— THE PUBLIC HEALTH SERVICE 

SUBCHAPTER I. — ADMINISTRATION 

§211a. * * * 

******* 

[§211b. Promotion of commissioned officers, 
[(a) Temporary promotions prior to July 1, 1948. 

[Except as provided in the third and fourth paragraphs of this 
section, no promotion shall be made under section 211 of this title, 
prior to July 1, 1948. Until that date officers of the Regular Corps may 
receive temporary promotions to higher grades with the pay and 
allowances thereof pursuant to section 211(a)(1) of this title, in 
force prior to February 28, 1948, notwithstanding the termination, 
prior to such date, of the war and of the national emergencies pro- 
claimed by the President. Any officer holding, on June 30, 1948, an ap- 
pointment pursuant to such section to a higher temporary grade shall 
continue in such grade until such appointment is terminated, as the 
President may direct. 

[(b) Service credit. 

[Effective as of February 28, 1948, each officer of the Regular Corps 
on such date, in addition to the credit he has under preexisting legis- 
lation for purposes of promotion, shall be credited with three years of 
service. 

[(c) Promotion based on years of service ; effective date ; examina- 
tion; service credit. 

[Officers of the Regular Corps who have, or who on or before July 1, 
1948, will have, the years of service prescribed in paragraph (2) of 
section 211(d) of this title, for promotion to the senior assistant, full, 
or senior grade, shall be recommended to the President for such pro- 
motion, to be effective as of July 1, 1948, whether or not vacancies 
exist in such grade. Such promotions shall be made without examina- 
tion, except that no promotions shall be made to the senior grade or 
any grade immediately below a restricted grade until the officer is 
found qualified for promotion pursuant to subsection (c) of section 211 
of this title. No promotion shall be made pursuant to this paragraph to 
any grade in any professional category if such grade has been made 
a restricted grade pursuant to subsection (b) of section 211 of this 
title. For purposes of seniority an officer promoted under this para- 
graph shall be credited with the years of service in the grade to which 
promoted equal to the excess of his years of service on the date of 
promotion over the years of service required for promotion to such 
grade under paragraph (2) of section 211(d) of this title. 

[Officers in the junior assistant grade in the Regular Corps who 
have, or who on or before July 1, 1948, will have four or more years 
of service in the junior assistant grade, shall be recommended to the 
President for promotion to the assistant grade, to be effective as of 
July 1, 1948, without examination and whether or not vacancies exist 



140 



in such grade. For purposes of promotion and seniority in grade, an 
officer promoted under this paragraph shall be credited with the years 
of service equal to the excess of his years of service on the date of pro- 
motion over four years. 

[(d) Service for purpose of seniority. 

[For purposes of seniority, any officer of the Regular Corps of the 
Public Health Service on February 28, 1948, shall be considered as 
having had service in the grade which he holds on such date equal to 
the excess of the service credited to him for promotion purposes over 
the length of service required under section 211(d) (2) of this title, 
for promotion to such grade. 

[(e) Term or tenure of office unaffected prior to July 1, 1948. 

[Except as provided in the third and fourth paragraphs of this sec- 
tion, the provisions of this section shall not, prior to July 1, 1948, 
affect the term or tenure of office (including any office held under 
temporary promotion) of any commissioned officer of the Service in 
office upon February 28, 1948. j 



Chapter 9.— HOUSING OF PERSONS ENGAGED IN NA- 
TIONAL DEFENSE 

SUBCHAPTER IX. DEFEXSE HOUSING AND COMMUNITY FACILITIES AND 

SERVICES 

[§ 1592. Authority of Administrator. 

[Subject to the provisions and limitations of sections 1591 to 1591c 
of this title, and of this subchapter, the Housing and Home Finance 
Administrator (hereinafter referred to as the "Administrator") is 
authorized to provide housing in any areas (subject to the provisions 
of section 1591 of this title) needed for defense workers or military 
personnel or to extend assistance for the provision of, or to provide, 
community facilities or services required in connection with national 
defense activities in any area which the President, pursuant to the 
authority contained in said section, has determined to be critical de- 
fense housing area.] 

TITLE 50, APPENDIX.— WAR AND NATIONAL DEFENSE, 

U.S. CODE 



TRADING WITH THE ENEMY ACT OF 1917 

(Act October 6, 1917, Ch. 106, 40 Stat. 411) 

§ 9. Claims to property transferred to custodian; notice of claim ; 
filing; return of property; suits to recover; sale of claimed 
property in time of war or during national emergency. 

(a) * * * 
******* 



141 



[(e) Xo money or other property shall be returned nor any debt 
allowed under this section to any person who is a citizen or subject 
of any nation which was associated with the United States in the 
prosecution of the war, unless such nation in like case extends recipro- 
cal rights to citizens of the United States ; Provided, That any arrange- 
ment made by a foreign nation for the release of money and other 
property of American citizens and certified by the Secretary of State 
to the Attorney General as fair and the most advantageous arrange- 
ment obtainable shall be regarded as meeting this requirement ; nor 
in any event shall a debt be allowed under this section unless it 
was owing to and owned by the claimant prior to October 6, 1917, 
and as to claimants other than citizens of the United States unless 
it arose with reference to the money or o*her property held by the 
Alien Property Custodian or Treasurer of the United States here- 
under; nor shall a debt be allowed under this section unless notice of 
the claim has been filed, or application therefor has been made, prior 
to the date of the enactment of the Settlement of War Claims Act of 
1928.] 



SALE OF SURPLUS WAR-BUILT VESSELS 

(Act Mar. 8. 1946. Ch. 82, 60 Stat. 41) 
******* 
[§ 1742. Price adjustment on prior sales to citizens, 
[(a) Form, manner, and time of application. 

[A citizen of the United States who on the date of the enactment 
of this Act [March 8, 1946]— 

[(1) owns a vessel which he purchased from the Commission 
prior to such date, and which was delivered bv its builder after 
December 31, 1940; or 

[(2) is party to a contract with the Commission to purchase 
from the Commission a vessel, which has not yet been delivered 
to him ; or 

[(3) owns a vessel on account of which a construction-differen- 
tial subsidy was paid, or agreed to be paid, by the Commission 
under section 504 of the Merchant Marine Act,' 1936, as amended 
[section 1154 of Title 46], and which was delivered by its builder 
after December 31, 1940 ; or 

[(4) is party to a contract with a shipbuilder for the construc- 
tion for him of a vessel, which has not yet been delivered to him, 
and on account of which a construction-differential subsidy was 
agreed, prior to such date, to be paid by the Commission under 
section 504 of the Merchant Marine Act, 1936, as amended [sec- 
tion 1154 of Title 46], 
shall, except as hereinafter provided, be entitled to an adjustment in 
the price of such vessel under this section if he makes application 
therefor, in such form and manner as the Commission may prescribe, 
within sixty days after the date of publication of the applicable pre- 
war domestic costs in the Federal Register under section 3(c) of this 
Act [section 1736(c) of this Appendix]. No adjustment shall be made 



142 



under this section in respect of any vessel the contract for the con- 
struction of which was made after September 2, 1945, under the provi- 
sions of title V [subchapter V of chapter 27 of Title 46] (including 
section 504 [section 1154 of Title 46]) or title VII of the Merchant 
Marine Act, 1936, as amended [subchapter VII of chapter 27 of 
Title 46]. 

[(b) Determination of amount. 

[Such adjustment shall be made, as hereinafter provided, by treat- 
ing the vessel as if it were being sold to the applicant on the date of 
the enactment of this Act [March 8, 1946], and not before that time. 
The amount of such adjustment shall be determined as follows: 

[ ( 1 ) The Commission shall credit the applicant with the excess 
of the cash payments made upon the original purchase price of the 
vessel over 25 per centum of the statutory sales price of the vessel 
as of such date of enactment [March 8, 1946]. If such pay- 
ment was less than 25 per centum of the statutory sales price 
of the vessel, the applicant shall pay the difference to the 
Commission. 

[(2) The applicant's indebtedness under any mortgage to the 
United States with respect to the vessel shall be adjusted. 

[(3) The adjusted mortgage indebtedness shall be in an amount 
equal to the excess of the statutory sales price of the vessel as of 
the date of the enactment of this Act [March 8, 1946] over the 
sum of the cash payment retained by the United States under 
paragraph (1) plus the readjusted trade-in allowance (deter- 
mined under paragraph (7) ) with respect to any vessel exchanged 
by the applicant on the original purchase. The adjusted mortgage 
indebtedness shall be payable in equal annual installments there- 
after during the remaining life of such mortgage with interest on 
the portion of the statutory sales price remaining unpaid at the 
rate of 3% per centum per annum. 

[(4) The Commission shall credit the applicant with the excess, 
if any, of the sum of the cash payments made by the applicant 
upon the original purchase price of the vessel plus the readjusted 
trade-in allowance (determined under paragraph (7)) over the 
statutory sales price of the vessel as of the date of the enactment 
of this Act [March 8, 1946] to the extent not credited under 
paragraph (1). 

[(5) The Commission shall also credit the applicant with an 
amount equal to interest at the rate of 3% per centum per annum 
(for the period beginning with the date of the original delivery 
of the vessel to the applicant and ending with the date of the en- 
actment of this Act [March 8, 1946] ) on the excess of the original 
purchase price of the vessel over the amount of any allowance 
allowed by the Commission on the exchange of any vessel on such 
purchase; the amount of such credit first being reduced by any 
interest on the original mortgage indebtedness accrued up to such 
date of enactment and unpaid. Interest so accrued and unpaid 
shall be canceled. 

[(6) The applicant shall credit the Commission with all 
amounts paid by the United States to him as charter hire for use 



143 



of the vessel (exclusive of service, if any, required under the terms 
of the charter) under any charter party made prior to the date of 
the enactment of this Act [March 8, 1946], and any charter hire 
for such use accrued up to such date of enactment and unpaid shall 
be canceled: and the Commission shall credit the applicant with 
the amount that would have been paid by the United States to the 
applicant as charter hire for bare-boat use of vessels exchanged 
by the applicant on the original purchase (for the period begin- 
ning with date on which the vessels so exchanged were delivered 
to the Commission and ending with the date of the enactment of 
this Act [March 8, 1946] ) . 

[(7) The allowance made to the applicant on any vessel ex- 
changed by him on the original purchase shall be readjusted so as 
to limit such allowance to the amount provided for under section 
8 [section 1741 of this Appendix] . 

[(8) There shall be subtracted from the sum of the credits in 
favor of the Commission under the foregoing provisions of this 
subsection the amount of any overpayments of Federal taxes by 
the applicant resulting from the application of subsection: (c) (1) 
of this section, and there shall be subtracted from the sum of the 
credits in favor of the applicant under the foregoing provisions 
of this subsection the amount of any deficiencies in Federal taxes 
of the applicant resulting from the application of subsection 
(c)(1) of this section. If, after making such subtractions, the sum 
of the credits in favor of the applicant exceeds the sum of the 
credits in favor of the Commission, such excess shall be paid by 
the Commission to the applicant. If, after making such subtrac- 
tions, the sum of the credits in favor of the Commission exceeds 
the sum of the credits in favor of the applicant, such excess shall 
be paid by the applicant to the Commission. Upon such payment 
by the Commission or the applicant, such overpayments shall be 
treated as having been refunded and such deficiencies as having 
been paid. 
[For the purposes of this subsection, the purchase price of a vessel on 
account of which a construction-differential subsidy was paid or 
agreed to be paid under section 504 of the Merchant Marine Act, 1936, 
as amended [section 1154 of Title 46], shall be the net cost of the 
vessel to the owner. 

[(c) Conditions binding on applicant. 

[An adjustment shall be made under this section only if the appli- 
cant enters into an agreement with the Commission binding upon the 
citizen applicant and any affiliated interest to the effect that— 

[(1) depreciation and amortization allowed or allowable with 
respect to the vessel up to the date of the enactment of this Act 
[March 8, 1946] for Federal tax purposes shall be treated as not 
having been allowable; amounts credited to the Commission 
under subsection (b) (6) of this section shall be treated for Fed- 
eral tax purposes as not having been received or accrued as in- 
come; amounts credited to the applicant under subsection (b) (5) 
and (6) of this section shall be treated for Federal tax purposes 
as having been received and accrued as income in the taxable year 



144 



in which falls the date of the enactment of this Act [March 8, 
1946] ; 

[(2) the liability of the United States for use (exclusive of 
service, if any, required under the terms of the charter) of the 
vessel on or after the date of the enactment of this Act [March 8, 
1946] under any charter party shall not exceed 15 per centum 
per annum of the statutory sales price of the vessel as of such date 
of enactment [March 8, 1946] and the liability of the United 
States under any such charter party for loss of the vessel shall 
be determined on the basis of the statutory sales price as of the 
date of the enactment of this Act [March 8, 1946], depreciated 
to the date of loss at the rate of 5 per centum per annum : Provided, 
That the provisions of this subsection (c) (2) [of this section] 
shall not apply to any such charter party executed on or after the 
date of enactment of this amendatory proviso [August 6, 1956] ; 
and the Secretary of Commerce is directed to modify any ad- 
justment agreement to the extent necessary to conform to the 
provisions of this amendatory proviso ; and 

[(3) in the event the United States, prior to the termination 
of the existing national emergency declared by the President on 
May 27, 1941, uses such vessel pursuant to a taking, or pursuant to 
a bare-boat charter made, on or after the date of the enactment 
of this Act [March 8, 1946] ; the compensation to be paid to the 
purchaser, his receivers, trustees, shall in no event be greater than 
15 per centum per annum of the statutory sales price as of such 
date. 

[(d) Applicability of other laws. 

[Section 506 of the Merchant Marine Act, 1936, as amended 
[section 1156 of Title 46], shall not apply with respect to (1) any 
vessel which is eligible for an adjustment under this section, or (2) 
any vessel described in clause (1), (2), (3), or (4) of subsection (a) 
of this section, the contract for the construction of which is made 
after September 2, 1945, and prior to the date of enactment of this Act 
[March 8, 1946].] 






SENATE DEBATE AND ADOPTION OF 

S. 3957, 93rd CONGRESS 

[Congressional Record— v. 120, Oct. 7. 1974— pp. S18356-S18367] 

Mr. Mansfield. Mr. President, I ask unanimous consent that the 
Senate proceed to the consideration of Calendar No. 1136. S. 3957, 
with the approval of the distinguished Senator from Idaho (Mr. 
McClure). 

The Acting President pro tempore. The bill will be stated by title. 

The legislative clerk read as follows : 

A hill (S. 3957) to terminate certain authorities with respect to national 
emergencies still in effect, and to provide for orderly implementation and 
termination of future national emergencies. 

The Acting President pro tempore. Is there objection to the present 
consideration of the bill ? 

There being no objection, the Senate proceeded to consider the bill. 

Mr. Mathias. Mr. President, I send an amendment to the desk. 

The Acting President pro tempore. The amendment will be stated. 

The legislative clerk proceeded to read the amendment. 

Mr. Mathias. Mr. President. I ask unanimous consent that further 
reading of the amendment be dispensed with. 

The Acting President pro tempore. Without objection, it is so 
ordered. 

The amendment is as follows : 

Strike out all after the enacting clause and insert in lieii thereof the following : 
That this Act may he cited as the "National Emergency Act"'. 

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES 

Sec. 101. (a) All powers and authorities possessed by the President, any other 
officer or employee of the Federal Government, or any Executive agency, as 
defined in section 105 of Title 5, United States Code, as a result of the existence 
of any declaration of national emergency in effect immediately prior to one year 
after the date of enactment of this Act are terminated one year from the date 
of such enactment. Such termination shall not affect — 

(1) any action taken or proceeding pending not finally concluded or determined 
on such date ; 

(2) any action or proceeding based on any act committed prior to such date : or 

(3) any rights or duties that matured or penalties that were incurred prior 
to such date. 

(b) For the purpose of this section, the words "any national emergency in 
effect" mean a general declaration of emergency made by the President pursuant 
to a statute authorizing him to declare a national emergency. 

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES 

Sec 201. (a) In the event the President finds that a proclamation of a na- 
tional emergency is essential to the preservation, protection and defense of the 
Constitution or to the common defense, safety, or well-being of the territory or 
people of the United States, the President is authorized to proclaim the existence 
of a national emergency. Such proclamation shall immediately be transmitted 
to the Congress and published in the Federal Register. 

(145) 



146 

(b) Any provisions of law conferring powers and authorities to be exercised 
during a national emergency shall be effective and remain in effect (1) only 
when the President (in accordance with subsection (a) of this section), specifi- 
cally declares a national emergency, and (2) only in accordance with this Act. 
No law enacted after the date of enactment of this Act shall supersede this 
title unless it does so in specific terms, referring to this title, and declaring that 
the new law supersedes the provisions of this title. 

Sec. 202. (a) Any national emergency declared by the President in accordance 
with this title shall terminate if — 

(1) Congress terminates the emergency by concurrent resolution: or 

(2) the President issues a proclamation terminating the emergency. At the 
end of each year following the declaration of an emergency which is still in 
effect, the President shall publish in the Federal Register and transmit to the 
Congress a notice stating that the emergency is still in effect. Any national 
emergency declared by the President shall be terminated on the date specified 
in any concurrent resolution referred to in clause (1) of this subsection, and any 
powers or authorities exercised by reason of said emergency shall cease to be 
exercised after such specified date, except that such termination shall not 
affect— 

(A) any action taken or proceeding pending not finally concluded or deter- 
mined on such date ; 

(B) any action or proceeding based on any act committed prior to such date; 
or 

(C) any rights or duties that matured or penalties that were incurred prior 
to such date. 

(b) Not later than six months after a national emergency is declared, and 
not later than the end of each six-month period thereafter that such emergency 
continues, each House of Congress shall meet to consider a vote on a concurrent 
resolution to determine whether that emergency shall be terminated. 

(c) (1) A concurrent resolution to terminate or continue a national emergency 
declared by the President shall be referred to the appropriate committee of the 
House of Representatives or the Senate, as the case may be. One such concur- 
rent resolution shall be reported out by such committee together with its rec- 
ommendations within fifteen calendar days, unless such House shall otherwise 
determine by the yeas and nays. 

(2) Any concurrent resolution so reported shall become the pending business 
of the House in question (in the case of the Senate the time for debate shall 
be equally divided between the proponents and the opponents ) and shall be voted 
on within three calendar days thereafter, unless such House shall otherwise 
determine by yeas and nays. 

(3) Such a concurrent resolution passed by one House shall be referred to the 
appropriate committee of the other House and shall be reported out by such 
committee together with its recommendations within fifteen calendar days and 
shall thereupon become the pending business of such House and shall be voted 
upon within three calendar days, unless such House shall otherwise determine 
by yeas and nays. 

(4) In the case of any disagreement between the two Houses of Congress 
with respect to a concurrent resolution passed by both Houses, conferees shall 
be promptly appointed and the committee of conference shall make and file a 
report with respect to such concurrent resolution within six calendar days after 
the legislation is referred to the committee of conference. Notwithstanding any 
rule in either House concerning the printing of conference reports in the Record 
or concerning any delay in the consideration of such reports, such report shall 
be acted on by both Houses not later than six calendar days after the conference 
report is filed. In the event the conferees are unable to acrree within 48 hours, 
they shall report back to their respective Houses in disagreement. 

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and 
section f>02(b) of this Act are enacted by Congress — 

(A) as an exercise of the rulemaking power of the Senate and the House of 
Representatives, respectively, and as such they are deemed a part of the rules of 
each House, respectively, but applicable only with respect to the procedure to be 
followed in the House in the case of resolutions described by this subsection: 
and they supersede other rules only to the extent that they are inconsistent 
therewith : and 

(P») with full recognition of the constitutional right of either House to chamre 
the rules (so far as relating to the procedure of that House) at any time, in the 



147 

same manner, and to the same extent as in the case of any other rule of that 
House. 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec. 301. Whenever Congress declares war, any provisions of law conferring 
powers and authorities to he exercised during time of war shall be effective from 
the date of such declaration. 

TITLE IV— ENERGISE OF EMERGENCY POWERS AND AUTHORITIES 

Sec. 401. When the President declares a national emergency, no powers or au- 
thorities made available by statute for use in the event of an emergency shall be 
exercised unless and until the President specifies the provisions of law under 
which he proposes that he, or other officers will act. Such specification may be 
made either in the declaration of a national emergency, or by one or more con- 
temporaneous or subsequent Executive orders published in the Federal Register 
and transmitted to the Congress. 

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE 

PRESIDENT 

Sec. 501. (a) When the President declares a national emergency, or Congress 
declares war. the President shall be responsible for maintaining a file and index 
of all significant orders of the President, including Executive orders and proc- 
lamations, and each such Executive agency shall maintain a file and index of all 
rules and regulations, issued during such emergency or war issued pursuant to 
such declarations. 

(b) All such significant orders of the President, including Executive orders, 
and such rules and regulations shall be transmitted to the Congress promptly 
under means to assure confidentiality where appropriate. 

(c) When the President declares a national emergency or Congress declares 
war. the President shall transmit to Congress, within 30 days after the end of 
each three month period after such declaration, a report on the total expenditures 
incurred by the United States Government during such three month period which 
are directly attributable to the exercise of powers and authorities conferred by 
such declaration. Not later than 30 days after the termination of each such emer- 
gency of war, the President shall transmit a final report on all such expenditures. 

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY 
POWER AND OTHER STATUTES 

Sec 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 
1481 (a > ) is amended — 

(1) at the end of paragraph (9), by striking out "; or'' and inserting in lieu 
thereof a period; and 

(2) by striking out paragraph (10). 

(b) Section 2667(b) of Title 10 of the United States Code is amended— 
(1 ) by inserting "and" at the end of paragraph (3) ; 

< 2 ) by striking out paragraph (4) ; and 

(3) by redesignating paragraph (5) as (4). 

(c) The joint resolution entitled "Joint Resolution to authorize the temporary 
continuation of regulation of consumer credit," approved August 8, 1947 (12 
U.S.C. 249 ) . is repealed. 

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 
831d(m)) is repealed. 

(e) Section 1383 of Title 18, United States Code, is repealed. 

(f) Section 6 of the Act entitled "An Act to amend the Public Health Service 
Act in regard to certain matters of personnel and administration, and for other 
purposes", approved February 28, 1948, is amended by striking out subsections 
(b), (c). (d), (e).and (f) (42 U.S.C. 211b). 

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742 I is 
repealed. 

(h) This section shall not affect — 

( 1 ) any action taken or proceeding pending not finally concluded or determined 
at the time of repeal : 

(2) any action or proceeding based on any act committed prior to repeal ; or 



148 

(3) any rights or duties that matured or penalties that were incurred prior to 
repeal. 

Sec. 602 (a) The provisions of this Act shall not apply to the following provi- 
sions of law, the powers and authorities conferred thereby, and actions taken, 
thereunder : 

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95 (a) ; 
50 U.S.C. Appal!,)) : 

(2) Section 673 of Title 10, United States Code: 

(3) Act of April 28, 1942 (40 U.S.C. 278b) ; 
( ( i Act of June 30, 1949 (41 U.S.C. 252) ; 

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ; 

((I) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15). 

(b) Each committee of the House of Representatives and the Senate having ju- 
risdiction with respect to any provision of law referred to in subsection (a) (1)- 
(('») of this section shall make a complete study and investigation concerning that 
provision of law and make a report, including any recommendations and proposed 
revisions it may have, to its respective House of Congress within 270 days after 
Mie date of enactment of this Act. 

Mr. Mat 1 1 i.\s. Air. President, I offer this amendment in behalf of 
my distinguished colleagues and eochairman of the Special Committee 
on National Emergencies and Delegated Emergency Powers (Mr. 
Church), and in behalf of the members of the Special Committee — 
Mr. Hart. Mr. Case, Mr. Pearson, Mr. Pell, Mr. Stevenson, and Mr. 
Hansen. 

^ery briefly, some of these are amendments which have been sug- 
gested in behalf of the President by the Office of Management and 
Budget. They make certain technical changes in the bill as it was origi- 
nally approved by the Special Committee, and thereafter approved 
by the Committee on Government Operations. They have been cleared 
with the distinguished chairman of the Committee on Government 
Operations (Mr. Ervin). 

What they do is very simple. They extend the grace period provided 
in the bill from nine months to a year. 

They provide that while Congress can terminate a national emer- 
gency at any time by concurrent resolution, there will be no automatic 
termination after six months if there is no affirmative action. This has 
been replaced by a requirement for the Congress to meet every six 
months to consider whether to terminate an emergency. An expedited 
privileged procedure would assure consideration and a vote should the 
Congress so decide. 

We have reduced the list of statutes to be repealed, In working with 
the other body, partially as a result of Special Committee studies, most 
of the provisions that have been deleted from our original list are to 
be taken care of in various deadwood projects by the Codification 
Committee of the House of Representatives. 

There are six statutes which are to be exempted from the provisions 
of this act. These statutes include Trading With the Enemy Act. a 
Ready Reserve provision, purchasing contract lease and claims au- 
thorities believed by the Executive branch to be absolutely essential 
for the operation of government. There is a requirement that the com- 
mittees with jurisdiction over these provisions must make a study and 
report recommendations within nine months about modifications or 
any other changes to be made. 

Finally, the requirement for accounting of expenditures incurred 
under the authority of emergency powers statutes suggested by Sena- 
tor MeOlellan ha^ been included. 



149 

Mr. President, over two years ago. the Senate created the Special 
Committee on the Termination of the Xational Emergency to examine 
the state of national emergency the United States was operating under 
and to make recommendations of how to best terminate the emergency 
and to provide for a regular and consistent procedure by which future 
emergencies could be met. 

Soon after the bipartisan committee composed of four Democrats 
and four Republicans, with cochairnien. one from either party, began 
its work, it was evident that there were four states of national emer- 
gency in force and not just one as many in the Congress had assumed. 
The national emergency declared by President Franklin D. Roosevelt 
in March, 1933, to meet the problems of the Great Depression has not 
yet been terminated. 

The national emergency declared by President Truman in Decem- 
ber, 1950, to better prosecute the Korean conflict, is still in force. The 
national emergency proclaimed by President Nixon on March 23. 1970, 
to handle the Post Office strike, and the August 15. 1971. national 
emergency to meet balance of payments and other international eco- 
nomic problems of that time are still in force. 

A majority of the people of the United State> have lived all of their 
lives under emergency government. For four decades normal consti- 
tutional processes have not been the rule. The wars, emergencies, and 
crises of various kinds of the past 10 years, in addition to the growth 
of the Executive branch bureaucracy under the leadership of strong 
Presidents, and the diminished role of the Congress in the making of 
policy — these factors have all contributed to the erosion of constitu- 
tional government. 

There is no valid reason for emergency rule to continue. We are not 
at war anywhere in the world and there are no other conditions that 
require the continued existence of a state of national emergency. Our 
government would be strengthened by bringing to an end all states 
of national emergency now in existence, and this termination should 
take place as soon as possible. 

One course of action that seemed at first to be the simplest solution, 
namely, to end the existing states of emergency forthwith and to repeal 
all emergency statutes, was rejected by the Special Committee after in- 
tensive study, because it was clear that such drastic action could cause 
serious disruption of governmental processes. Some of the departments 
and agencies have used emergency authorities as basic everyday law. 
In the view of the Special Committee, it would be unwise to abruptly 
halt these operations without providing a reasonable period of time to 
make a transition from emergency law to permanent law. 

An example of this everyday use of emergency authority is the so- 
called section 5(b) of the Trading With the Enemy Act. This provi- 
sion which date- back to World War I and 1917 has been in constant 
use as a means to regulate many aspects of foreign trade and interna- 
tional monetary controls. Partially because of the prospect that the 
states of national emergency would be terminated, the Treasury De- 
partment has already begun to adjust to doing its business without the 
broad open-ended authorities contained in the section 5(b) provisions. 
The Special Committee has taken into account the need for a period of 
time to make the adjustment with the least possible disarray. For al- 
most two years the Treasury Department has been aware that the states 



150 

of national emergency would be terminated. The germane committees 
are aware of the problem. The committees of Congress with assigned 

jurisdictions and the Executive branch agencies should properly de- 
cide through the regular legislative process the provisions of any new 
or modified legislation. In order to assure an orderly transition, the 
Special Committee's view that a grace period of one year after date of 
enactment should be given to the Executive branch has been incorpo- 
rated in the legislation now before the Senate. 

S< ition 6021 a) of the lull now before the Senate contains six provi- 
sions of law which the Executive branch has strongly urged continue 
in force. The Special Committee has concurred in this request. Section 
>) would require the standing committees with jurisdiction over 
these statutes to study provisions and make a report to the Senate 
which would include recommendations and any proposed revisions. 
A similar process would be undertaken by the germane committees in 
the House. With the informed awareness now available to both the 
dative and Executive branches of provisions of law that have been 
used to meet emergency situations, it is reasonable to assume that some 
modifications will be made in some, if not all. of the statutes contained 
in section 601 after further study in the coming nine months by both 
the Executive branch and the committees of the Congress. In view of 
the Special Committee, the most effective way to resolve this kind of 
outstanding issue can best be done by the two branches working through 
the regular legislative process. But the burden to remove these excep- 
tions lies most heavily upon the Congr< ss. 

The Special Committee wanted to be certain that the Executive 
branch of the U.S. Government would have the proper legal authority 
to act effectively to meet any future emergencies. To this end. the 
Special Committee asked every department and agency of the Execu- 
tive branch and every standing committee of the Senate to evaluate 
the emergency powers statutes now in force as to their utility for use 
in any future emergency. This evaluation provides the basis for the 
repealer section of the National Emergencies Act. section 601. The 
statutes contained therein are considered obsolete by both the Executive 
branch agencies and by the committees. There is no disagreement be- 
tween the branches that these obsolete provisions should be repealed. 

There are other statutes among the 47" statutes that the respective 
standing committees may wish to repeal or modify at some future time 
should they so decide. The Special Committee now has in the process 
of being printed by the Government Printing Office, a Committee print 
in the form of a handbook for use by departments and agencies of 
the Executive branch and the committees of Congress containing a list- 
ing of al] statutes with the evaluation made of these statutes by the 
slative and Executive branches. 

The Special Committee understands that the Department of Defense 
may have special problem- with regard to officer appointments, promo- 
tions, distribution in grade, separation and retirements that may not 
be resolved by the Armed Services Committees of the Congress and the 
Department of Defense by the time the termination of the national 
emerg takes effect. I am confident that the Congress would look 

sympathetically upon any request to meet any unresolved problem 
should there be any after the states of national emergency are 
terminated. 



151 

There is one statute the Special Committee believes strongly should 
be repealed: namely, 18 U.S.C. 1383 which gives the President, the Sec- 
retary of the Army, or any general the authority to declare any part or 
even conceivably all of the United States a military zone. People in 
such zones can be put in jail for a year for violating any "Executive 
order of the President." 

At the present time, only a small portion of the 470 delegated emer- 
gency powers is being used. This is one significant proof that there is 
no longer an "emergency" that requires extraordinary delegations of 
power. In the view of the Special Committee, permitting this body of 
potentially authoritarian power to continue in force in the absence of a 
valid national emergency situation poses a hazard to democratic 
government. 

It is important to understand how the present state of emergency rule 
has come about. The failure to place emergency rule under firm consti- 
tutional guidelines must be considered as a failure by all three branches 
to carry out their respective constitutional responsibilities. Aggres-ive 
Presidents, permissive Congresses, and a long series of successive crises, 
have all contributed to the erosion of the structure of divided powers, 
the bedrock of our constitutional system of government. 

The studies undertaken by the Special Committee of how the four 
states of national emergency came into being, and how the over 470 
emergency statutes became the law of the land, provide a disturbing 
explanation of the deterioration of the constitutional responsibility for 
lawmaking during the past four decades. 

In the particular area of emergency powers statutes, the constitu- 
tionally prescribed roles of the Legislative and Executive branches 
have been reversed. The Special Committee's studies show that in far 
too many instances, the Executive branch itself drafted the laws and 
cast them in such form as to give itself maximum flexibility. It is under- 
standable that the Executive branch, in drafting laws granting power 
to itself, did not provide either for oversight or for termination by 
Congress. It is also not surprising that most of these laws were passed 
in times of crisis, when because of the urgency. Congress acted hastily 
without real scrutiny, without thorough hearings, and without the 
deliberation that such legislation should have demanded. For these rea- 
sons. Congress has not exercised its responsibilities prudently: it has 
not even reserved for itself the means to take back its delegated powers. 

Xow in a time of relative world peace. Congress has the opportunity 
to draw back and reexamine how profligately we have dealt with war 
and other emergencies. Our sobering experience with the undeclared 
Korean and Vietnam wars heightens the necessity to understand the 
means available within the Constitution to meet crisis situations affect- 
ing our national security. 

The Special Committee has held extensive hearing seeking the views 
and advice of the country's most distinguished authorities on constitu- 
tional government in time of crisis. In addition to scholarly authorities 
in the fields of political science and the law. the Special Committee 
sought the counsel of all the former Attorneys General and two former 
Sunreme Court Justices, as well as many distinguished lawyers. 

The Special Committee has sought to obtain the views and opinions 
of each of the three branches about how to best meet the problem 



i-474 O - 76 - 11 



152 

of emergency rule. The Special Committee thought it was particularly 
necessary to obtain not simply the present day perspective, but also 
the perspective of those who have served in successive administrations, 
Congresses, and courts over the past 41 years of emergency rule. It was 
particularly helpful to have views of those who have served as both 
Attorney General and Supreme Court Justice. We have the opinions, 
of course, of Justice Jackson in the most important Youngstown Steel 
case. We are fortunate to have a number of Attorneys General who 
have served in many capacities and not only in the Executive branch. 
A number of this country's most distinguished law schools have on 
their faculties men who have served their government in the executive 
branch or in the judiciary or as staff consultants to Congressional com- 
mittees. In the view of the Special Committee, this broad perspective 
over the four decades of emergency rule was absolutely vital in order 
to consider the problem in a context that, of course, would include the 
immediate concerns of the respective branches but also the test of 
history and considered reflection on the part of those who have been 
through the experience and could objectively judge. Many of these 
views and opinions are contained in the published hearings of the 
Committee. Considerable valuable advice was given in study sessions 
at law schools or at private meetings held by members of the com- 
mittee over the past two years. 

On the basis of the suggestions and perspective gained from these 
hearings, and from two intensive staff studies of emergency power 
statutes and Executive orders, and upon the basis of the data, advice, 
and counsel supplied by the Executive branch, the Special Committee, 
working with the Executive branch at every step, drafted the legis- 
lation now before the Senate which would provide : 

First. The termination of the present states of national emergency ; 

Second. The establishment of a regularized procedure for the use of 
delegated emergency power in future emergencies. The President could 
declare a national emergency and in his public proclamation would 
cite the specific statutory powers he requires to meet the emergency. A 
state of national emergency could be terminated at any time either 
by concurrent resolution or by a Presidential proclamation. The Con- 
gress would meet under a privileged expedited procedure by the end 
of six months to consider whether to continue a state of national emer- 
gency. If, by the end of six-month intervals, Congress takes no ac- 
tion, the state of national emergency would continue; 

Third. A means of providing accountability for actions taken 
pursuant to emergency power statutes in any future emergency; 

Fourth. A listing of those statutes which both the Executive branch 
and the respective standing committees of the Senate agree can be 
repealed because they are obsolete; and 

Fifth. A listing of six statutes which will continue in force until 
such time as the Congress might act to modify or repeal them. 

The Special Committee has been careful to consider the needs of 
the Executive branch to act promptly and effectively in a time of na- 
t ional emergency. From the outset, almost two years ago, we sought the 
advice of all the available former Attorneys General, former Supreme 
Court Justices including the late former Chief Justice Earl Warren. 
We have consulted with the departments and agencies led by a suc- 
cession of Cabinet officers. 



153 

It is not surprising that there were, of course, different points of 
views on matters of detail. Understandably, officials in any present 
administration would like more flexibility rather than less. But over 
the past two years the Executive branch and the Special Committee 
have worked together to resolve differences. The bill now before the 
Senate is the result of two years of joint effort. We have sought to pro- 
vide means to permit the Legislative and Executive branches to carry 
out their constitutional responsibilities as well as possible and in accord 
with the means prescribed by the Constitution for the respective 
branches. 

In general, the record of cooperation over the past two years between 
the Legislative and Executive branches in working toward a legislative 
remedy has been exemplary. Every department and agency of the 
Executive branch has cooperated with requests from the Special Com- 
mittee for information in their areas of jurisdiction. This cooperation 
has been a model of how the two branches can work together. The 
Special Committee, for example, would still be laboring through 87 vol- 
umes of the Statutes- At -Large to find out exactly what laws were in- 
volved, were it not for the assistance provided by the U.S. Air Force 
which had fortuitously put the United States Code into its LITE com- 
puter system located at a base in Colorado. The General Services Ad- 
ministration and particularly the Federal Register of the National 
Archives, provided invaluable help in bringing substance and under- 
standing into the shadowy world of Executive orders issued pursuant 
to states of emergency. The Justice Department, largely through the 
counsel of Attorneys General themselves and the Office of Legal Coun- 
sel, has given expert advice to the Special Committee, and we grate- 
fully acknowledge the importance of their assistance. 

The Office of Management and Budget has helped the Special Com- 
mittee by providing a detailed evaluation of the current utility of 
emergency statutes now in force. The Executive branch's coordinated 
evaluation of these statutes and a parallel evaluation by the standing 
committees assisted the Special Committee greatly to prescribe a rem- 
edy in accord with the constitutional responsibility of Congress to 
make laws. The Special Committee urges the Congress to proceed forth- 
with to end the four existing states of national emergency, repeal cer- 
tain laws that both the Executive branch and the Congress believe ob- 
solete, and to legislate a regular procedure to be used in the event of 
future national emergencies. 

It has been an underlyinp; premise of the Special Committee that the 
findings contained in the Youngstown Steel case of 1052. particularly 
the opinion of Justice Jackson, provide sound and pertinent guide- 
lines for the governance of emergency powers. Justice Jackson, sup- 
porting the majority opinion that the "President's power must stem 
either from an act of Congress or from the Constitution itself,'' wrote : 

Emergency powers are consistent with free government only when their con- 
trol is lodged elsewhere than in the Executive who exercises them. That is the 
safeguard that would he nullified by our adoption of the "inherent powers" for- 
mula. Nothing in my experience convinces me that such risks are warranted by 
any real necessity, although such powers would, of course, be an Executive 
convenience. 

In the practical working of our government we already have evolved a tech- 
nique within the framework of the Constitution by which normal Executive pow- 
ers may be considerably expanded to meet an emergency. Congress may and has 



154 

granted extraordinary authorities which lie dormant in normal times but may be 
called into play by the Executive in war or upon proclamation of a national 
emergency. . . . 

In view of the ease, expedition and safety with which Congress can grant and 
has granted large emergency powers, certainly ample to embrace this crisis, I 
am quite unimpressed with the argument that we should affirm possession of them 
without statute. Such power either has no beginning or it has no end. If it exists, 
it need submit to no legal restraint. I am not alarmed that it would plunge us 
straightway into dictatorship, but it is at least a step in that wrong direction. 

But I have no illusion that any decision by this Court can keep power in the 
hands of Congress if it is not wise and timely in meeting its problems. A crisis 
that challenges the President equally, or perhaps primarily, challenges Congress. 
If not good law, there was worldly wisdom in the maxim attributed to Napoleon 
that "the tools belong to the man who can use them.'' We may say that power to 
legislate for emergencies belongs in the hands of Congress, but only Congress 
itself can prevent power from slipping through its fingers. 

With all its defects, delays and inconveniences, men have discovered no tech- 
niques for long preserving free government except that the Executive be under 
the law, and that the law be made by parliamentary deliberations. 

In our view, Congress should provide statutory guidelines to assure 
the full operation of constitutional processes in time of war or emer- 
gency. This is the best prescription to avoid any future exercise of arbi- 
trary authoritarian power. For as the Youngstown case decided, where 
there is a statute, the Executive is obliged to use the statutory remedy ; 
where there are no lawful statutory guidelines is to invite so-called in- 
herent powers to come into play. There is without question a need, in 
view of the Special Committee, to provide the Executive branch with 
an effective, workable method for dealing with future emergencies in 
accord with constitutional processes. The Special Committee has 
sought to do this in fulfillment of its mandate. 

During the past year, the Special Committee requested the assistance 
of the Majority and Minority Leaders in the preparation of guidelines 
for procedural actions to be taken on the part of the Senate in possible 
future emergencies. Because it is clear that if Congress is to fulfill its 
responsibilities to act in time of emergency, it must make preparations 
in advance to do so. The actions already taken by the leadership, in 
the view of the Special Committee, meet the needs that might reason- 
ably be required by future emergencies. 

Senator Church, the cochairman of the Special Committee, and I 
met with President Ford on August 22, to discuss the National Emer- 
gencies Act. He agreed in principle with the purposes contained 
therein. We were much encouraged by his understanding of and sup- 
port for a solution to this most important question that confronts our 
constitutional system of government. 

In addition, Ave have delayed action on this bill in order to permit 
the Executive branch to give us some further suggestions. We thought 
many of the proposals were helpful to the overall purpose and have 
included them as perfecting amendments to the bill. 

We believe that the National Emergencies Act. now before the Sen- 
ate, if enacted, would remove one threat to constitutional government 
by placing the exercise of emergency powers under a regular and con- 
sistent procedure consistent with the constitutional responsibilities of 
the separate branches. We urge the Senate to vote affirmative for 
this proposal to strengthen constitutional processes. 

While it is important to stress that provisions of the National Emer- 
gency Act affect only those provisions of law which are specifically 



155 

triggered by war or a state of national emergency, there are a number 
of other statutes not specifically cast in the form of emergency powers 
statutes, some of which are far-reaching in nature that are a part of 
the history of emergency rule. Some of these provisions have been re- 
ferred to on pages 2 and 3 of the interim report of the Special Com- 
mittee on National Emergencies and Delegated Emergency Powers in 
support of a recommended National Emergencies Act of September 24, 
1074. Report Xo. 03-1170. It is the intention of the Special Committee 
in a final report to indicate those provisions of law that the regular 
standing committees should, in the view of the Special Committee ex- 
amine carefully and consider whether changes would be warranted in 
the light of the present situation. 

The Special Committee wishes to stress that the six statutes con- 
tained in section 602 deserve the most careful consideration by the 
committees with jurisdiction over the provisions. I ask unanimous 
consent that the texts of these provisions be printed in the Record at 
this point in my remarks. 

There being no objection, the statutes were ordered to be printed in 
the Record, as follows : 

12 U.S.C. 95a. Regulation of Transactions in Foreign Exchange of Gold and 
Silver : Property Transfers ; Vested Interests. Enforcement and 
Penalties 

Hi During the time of war or during any other period of national emergency 

(hela red by the President, the President may, through any agency that he may 
designate, or otherwise, and under such rules and regulations as he may pre- 
scribe, by means of instructions, licenses, or otherwise — 

i A) investigate, regulate, or prohibit any transactions in foreign exchange, 
transfers of credit or payments between, by. through or to any banking institu- 
tion, and the importing, exporting, hording, melting, or earmarking of gold or 
silver coin or bullion, currency or securities, and 

(B) investigate, regulate, direct and compel, nullify, void, prevent or pro- 
hibit, any acquisition holding, withholding, use, transfer withdrawal transporta- 
tion, importation or exportation of. or dealing in. or exercising any right, power, 
or privilege with respect to. or transactions involving, any property in which any 
foreign country or a national thereof has any interest, by any person, or with 
respect to any property, subject to the jurisdiction of the United States: and 
any property or interest of any foreign country or national thereof shall vest, 
when. as. and upon the terms directed by the President, in such agency or per- 
son as may be designated from time to time by the President, and upon such 
terms and conditions as the President may prescribe such interest or property 
shall be held, used, administered, liquidated, sold, or otherwise dealt with in 
the interest of and for the benefit of the United States, and such designated 
agency or person may perform any and all acts incident to the accomplishment 
<>r furtherance of these purposes; and the President shall, in the manner here- 
inabove provided, require any person to keep a full record of. and to furnish 
under oath, in the form of reports or otherwise, complete information relative to 
any act or transaction referred to in this section either before, during, or after 
the completion thereof, or relative to any interest in foreign property, or rela- 
tive to any property in which any foreign country or any national thereof has 
or has had any interest, or as may be otherwise necessary to enforce the pro- 
visions of this section, and in any case in which a report could be required, 
the President may. in the manner hereinabove provided, require the production, 
or if necessary to the national security or defense, the seizure, of any books of 
account, records, contracts, letters, memoranda, or other papers, in the custody 
or control of such person : and the President may. in the manner hereinabove 
provided, take other and further measures not inconsistent herewith for the 
enforcement of this section. 

(2) Any payment, conveyance, transfer, assignment, or delivery of property or 
interest therein, made to or for the account of the United States, or as otherwise 



156 

directed, pursuant to this section or any rule, regulation, instruction or direc 
tion issued hereunder shall to the extent thereof be a full acquittance and dis- 
charge for all purposes of the obligation of the person making the same ; and no 
person shall be held liable in any court for or in respect to anything done or 
omitted in good faith in connection with the administration of, or in pursuance 
of and in reliance on, this section, or any rule, regulation, instruction, or direc- 
tion issued hereunder. 

(3) As used in this section the term "United States" means the United States 
and any place subject to the jurisdiction thereof: Provided, however, That the 
foregoing shall not be construed as a limitation upon the power of the 
President, which is conferred, to prescribe from time to time, definitions, 
not inconsistent with the purposes of this section, for any or all of the 
terms used in this section. Whoever willfully violates any of the pro- 
visions of this section or of 'any license, order, rule or regulation issued there- 
under, shall, upon conviction, be fined not more than $10,000, or, if a natural 
person, may be imprisoned for not more than ten years, or both ; and any officer, 
director, or agent of any corporation who knowingly participates in such violation 
may be punished by a like fine, imprisonment, or both. As used in this section the 
term "person" means an individual, partnership, association, or corporation. 
(Oct. 6, 1917, ch. 106, § 5(b), 40 Stat. 415; Sept. 24, 1918, ch. 176, §5, 40 Stat 
966 ; Mar. 9, 1933, ch. 1 title I, § 2, 48 Stat. 1 ; May 7, 1940, ch. 185, § 1, 54 Stat. 
179 ; Dec. 18, 1941, ch. 593, title III, § 301, 55 Stat. 839 ; Proc. No. 2695, eff. Julv 4, 
1946, 11 F.R. 7517, 69 Stat. 1352.) 

Note — Trading With the Enemy Act of 1917 

The Trading With the Enemy Act of 1917 has been amended frequently, and in 
the process its original purpose and effect have been altered significantly. The 
Act was originaly intended to "define, regulate and punish trading with the 
enemy," 40 Stat. 415. Directed primarily to meeting the exigencies of World 
War I, its drafters intended the Act to remain on the books for future war 
situations. 55 Cong. Rec. 4908. Accordingly, when other war powers were termi- 
nated in 1921 an exception was made for the Act and it remained valid law. 41 
Stat. 1359 (the Knox Resolution). 

On March 5, 1933, President Roosevelt relied on section 5(b) of the Trading 
with the Enemy Act as authority for his Proclamation 2039 which closed all banks 
for five days. This was clearly a time of financial crisis, not of war, and hence 
was not within the literal terms and purposes of the Act. Congress rectified the 
situation five days later when it ratified the President's proclamation and 
amended section 5(b) to give the President the broad wartime powers of that sec- 
tion in times of declared national emergency as well. 48 Stat. 1. The desperate 
economic circumstances of the time dictated the passage of this sweeping 
change — after only eight hours of Congressional consideration. 

Roosevelt relied on section 5(b) again in 1939 when he restricted all trans- 
fers of currency and credit between the United States and German-occupied Den- 
mark and Norway. Executive Order 8389. This action was subsequently approved 
and the President's exact powers clarified by Congress, resolving whatever ques- 
tions may have remained about Congressional intentions to restrict the applica- 
tion of 48 Stat. 1 to either the economic emergency or to actual wars. 54 Stat. 
179. This set the legal stage, then, to invoke Presidential powers and under the 
Trading With the Enemy Act in wartime or pursuant to any declaration of na- 
tional peacetime emergency. 

The next time these powers were involved was during World War II (with a 
slight Congressional modification — see 55 Stat. 838). A major expansion of Presi- 
dential authority was effected with the imposition of consumer credit controls 
(Executive Order 8843) by interpreting "banking institutions" as used in section 
5(b) to include any person engaged in the business of making extensions of 
credit. Subsequent Congressional action has reaffirmed this power, too, in times 
of war or national emergency. 12 U.S.C. 249. 

Another declaration of national emergency was made in Proclamation 2914 of 
December 16, 1950, during the Korean War. Trading With the Enemy Act powers 
were exercised pursuant to this proclamation throughout the war. Because 
the state of emergency so declared has never been terminated, however, this 
proclamation has continued to serve as the basis for invocation of powers under 
the Act. Most notably, President Johnson used section 5(b) as authority for Ex- 



157 

ecutive Order 11837 of January 1, 1968, imposing controls over transfers of pri- 
vate capital to foreign countries. (On the validity of this action, see Opinion of 
the Attorney General February 3, 1968.) 

On August 15, 1971, President Nixon, in Proclamation 4074. declared an emer- 
gency concerning America's declining worldwide economic position. He imposed 
an import surcharge and devalued the dollar, among other things. One year later, 
when the Export Control Act lapsed for a month, he invoked section 5(b) to reg- 
ulate exports, basing his authority to do so both on his Proclamation 4074 and on 
President Truman's proclamation of 1950. 

The current law, which has accreted over a period of 50 years, gives the 
President a wide range of powers, but only in time of war or declared national 
emergency. Although the Korean War has ended, these powers are being exercised 
solely on the basis of the 1950 emergency : or. on the basis of the President's uni- 
laterally designating as "emergencies" situations which have only the most 
tenuous relationship to the serious national crises for which the Trading With 
the Enemy Act was originally intended. The President, with the approval of Con- 
gress, has thus used as authority for extraordinary actions laws which have no 
real relationship whatsoever to existing circumstances. As a consequence, a 
"national emergency" is now a practical necessity in order to carry out what has 
become the resrular and normal method of governmental action. What were 
intended by Congress as delegations of power to be used only in the most extreme 
situations and for the most limited durations have become everyday powers; and 
a state of ••emergency" has become a permanent condition. 



Department of Justice. 

May 21, 1914. 

Memorandum for the Special Committee ox the Termination of the 
National Emergency 

Re: Emergency power under § 5(b) of the Trading With the Enemy Act 

During the course of hearings held by the Committee frequent mention has 
been made of the Trading With the Enemy Act ("the Act"). Section 5(b) of the 
Act las been the statutory foundation for control of domestic as well as inter- 
national financial transactions and is not restricted to "trading with the enemy." 
Its use over the years provides an interesting study in the evolution of a statute 
as a result of continuing interplay between the Executive and Congress. Of all 
the emergency statutes under study by the Committee, it has ihe most complex 
and varied history. This paper does not make any recommendations or draw any 
conclusions but presents a short legal chronology of §5(b) to assist the Com- 
mittee in understanding its background and present status. 

I. ORIGINAL ENACTMENT WORLD WAR I 

The Act was passed in 1917 to "define, regulate, and punish trading with the 
enemy." 40 Stat. 415. Section 5(b) .srave the President power to regulate trans- 
actions in foreign exchange, the export <>r hoarding of gold or silver coin or 
bullion or currency and transfers of credit in any form •'between the United 
States and any foreign country, whether enemy, ally of enemy, or otherwise." 40 
Stat. 415 (1917) as amended by 40 Stat. 966 (1918). Section 5(b), at that time, 
exempted '"transactions to be executed wholly within the United States." thus 
appearing to limit its use as a basis for domestic controls. It did not include a 
provision permitting use of the Act during periods of national emergency nor 
was its use restricted by its terms to the duration of the First World War or any 
specified term after the end of the War. A law passed in 1921 terminating certain 
war powers specifically exempted the Act from termination because of the large 
amount of property held under the Act by the Alien Property Custodian at that 
time. See Ellingwood, The Legality of the National Bank Moratorium, 27 Xw. 
U.L. Rev. 923. 92.5-26 1 1933). 

II. DEPRESSION RANKING EMERGENCY 

Upon taking office in March. 1933, President Roosevelt was pressed to deal 
promptly with a nationwide panic that threatened to drain the liquid resources 
of most of the banks in the country. The Public Papers and Addresses of Franklin 



158 

D. Roosevelt, pp. 24-29 (1933) [hereinafter "Roosevelt Papers"]. He therefore 
invoked the "forgotten provisions" of § 5(h) on March 6, 1933, to declare a bank 
holiday and control the export of gold. Sehlesinger, The Coming of the New Deal 
4 (1959). The bank holiday proclamation noted that there had been "heavy and 
unwarranted withdrawals of gold and currency from our banking institutions for 
the purpose of hoarding" and that increasing speculation abroad in foreign ex- 
change had resulted in severe drain on domestic gold supplies, thus creating a 
"national emergency." Therefore, it was "in the best interest of all bank deposi- 
tors that a period of respite be provided with a view to preventing further hoard- 
ing of coin, bullion or currency or speculation in foreign exchange." In order to 
prevent export or hoarding of bullion or currency, a bank holiday was, therefore, 
proclaimed from March 6 through March 9, 1933. Executive Proclamation No. 
2039. March 6, 1933, 48 Stat. (Part 2) 1698. 

By invoking § 5(b) as authority, President Roosevelt was, of course, using that 
provision for a different purpose than the one for which it was enacted in 1917. 
However, as one writer noted, closing the banks was "one of the surest and 
quickest ways'' to prevent transactions in foreign exchange and the exportation 
of gold and silver coin, bullion and currency. Section 5(b) had, as noted, given 
the President power to regulate such matters. Ellingwood, The Legality of the 
'National Bank Moratorium. 27 Xw. ILL. Rev. 923, 925 (1933). 

Congress was called into session within days of the Proclamation. Roosevelt 
Papers 17. As soon as Congress was convened on March 9, 1933, it approved the 
bank holiday by passing the so-called Emergency Banking Act or Bank Conser- 
vation Act, 48 Stat. 1. That Act provided that the actions and proclamations "here- 
tofore or hereafter taken ... or issued by the President of the United States . . . 
since March 4, 1933, pursuant to the authority conferred by subdivision (b) of 
section 5 of the Act of October 6, 1917, as amended, are hereby approved and 
confirmed." (48 Stat. 1 ; 12 U.S.C. 95b (1970) ). Congress thus "spread its protec- 
tive approval over Executive acts the legality of which was uncertain." Elling- 
wood, op. oit. supra at 27 Nw. U.L. Rev. 929 (1933). Congress also amended sec- 
tion 5(b) to provide, among other things, that "[d]uring time of war or during 
any other period of national emergency declared by the President, the President 
may . . . regulate, under such rales and regulations as he may prescribe . . . 
transfers of credit between or payments by banking institutions as defined by 
the President. . . ." 48 Stat. 1. In the enactment clause Congress declared "that 
a serious emergency exists." 48 iStat. 1. The exclusion of domestic transactions, 
formerly found in the Act, was deleted from § 5(b) at this time. 

The legislative history of the Emergency Banking Act is short ; only eight hours 
elapsed from the time the bill w T as introduced until it was signed into law. There 
were no committee reports. Indeed, the bill was not even in print at the time it 
was passed. 77 Cong. Rec. 76, 80 (1933) ; Schlesinger, The Coming of the Keiv 
Deal 8. 

The abbreviated history shows Congress recognized that the powers conferred 
on the President by the Act were great. In the debate preceding the bill's passage 
those supporting it made such remarks as : 

". . . In time of storm there can only be one pilot. In my judgment, the House 
of Representatives realizes that the pilot in this case must be the President of the 
United States, and they will steer their course by him (Rep. Goldsborough, 77 
Cong. Rec. 81). 

"It is a dictatorship over finance in the United States. It is complete control 
over the banking system in the United States. (Rep. McFadden, 77 Cong. Rec. 80). 

"I realize that in time of peace we have perhaps never been called upon to vest 
such transcendent powers in the Executive as are provided for in this bill. . . . 
It is an emergency which can be adequately dealt with only by the strong arm of 
Executive power, and, therefore, I expect to vote for the bill, though it contains 
grants of pow T ers which I never before thought I would approve in time of 
peace." (Sen. Connally, 77 Cong. Rec. 65). 

The courts later upheld the validity of the bank holiday under the Act as 
amended, E.g.. Smith v. Witherow, 102 F.2d 638, 641 (3d Cir., 1939) ; Hardee v. 
Washington Loan, & Trust Co., 91 F.2d 314 (D.C. Cir. 1937). Because of the 
prompt action taken by Congress in ratifying the March 6 proclamation, no judi- 
cial decisions were rendered on the question of whether the President's action, if 
taken alone, would have been lawful. 

Subsequently in 1933-34, acting under §5(b), President Roosevelt issued a 
series of orders which prohibited the hoarding of gold and directed that all gold 



159 

bullion certificates be deposited with the Federal Reserve banks and which 
regulated transactions in foreign exchange : 

(1) Executive Order 6073 of March 10, 1933, prohibited the export or removal 
of gold from the United States, except as authorized by the Secretary of the 
Treasury, and banks were prohibited from making transfers of foreign exchange 
except in connection with certain described transactions. This order did not 
specifically refer to a national emergency. 

(2) Executive Order 6102 of April 5. 1933, generally required holders of gold 
coin, gold bullion, and gold certificates to surrender their holdings to Federal 
Reserve banks. This Order stated "By virtue of the authority vested in me bi- 
section 5(b) . . . as amended by section 2 of the Act of March 9, 1933, ... in 
which amendatory Act Congress declared that a serious emergency exists, I . . . 
do declare that said national emergency still continues to exist." 

(3) Executive Order 6111 of April 20, 1933, authorized the Secretary of the 
Treasury to regulate transactions in foreign exchange and the export or with- 
drawal of currency from the United States. The emergency basis for E.O. 6111 
was stated in the same language as the language of E.O. 6102, quoted immediately 
above. 

(4) Executive Order 6260 of August 28, 1933. was issued to supplant Executive 
Orders 6102 and 6111. This order prohibited the holding or export of gold, except 
under license issued by the Secretary of the Treasury, and authorized the 
Secretary to regulate or prohibit transactions in foreign exchange. In E.O. 6260 
the President stated, "I . . . do declare that a period of national emergency 
exists." Executive Order 6260 was confirmed and amended by Presidents Eisen- 
hower and Kennedy. 31 CFR Part 54. See 42 Op. A.G. No. 35, p. 9. 

(5) Executive Order 6560. of January 15, 1934, authorized the Secretary of the 
Treasury to regulate transactions in foreign exchange, transfers of credit from 
American to foreign banks and export of currency or silver coin. This order is 
still on the books today. See 31 CFR Parts 127-128. In this Order, the President 
declared that "a period of national emergency continues to exist." 

In January, 1934, Congress ratified all acts which had been performed under 
the Emergency Banking Act, 48 Stat. 343 (1934) ; 12 U.S.C. 213 (1970). 

III. WORLD WAR II ALIEN PROPERTY FREEZE 

Following the invasion of Norway and Denmark by Germany in April, 1940, 
President Roosevelt acted to protect funds of residents of these countries in the 
United States from withdrawal under duress by issuing an order freezing those 
assets except as authorized by the Secretary of the Treasury. Executive Order 
No. 8389 (April 10, 1940). The order referred to authority under § 5(b) but did 
not specifically mention the existence of a national emergency. The President 
had proclaimed a national emergency only months before in September, 1939; 
Proclamation No. 2352 noted the neutrality of the United States in the war and 
stated : 

"Whereas measures required at this time call for the exercise of only a limited 
number of the powers granted in a national emergency : 

"Now, therefore. I ... do proclaim that a national emergency exists in con- 
nection with and to the extent necessary for the proper observance, safeguarding, 
and enforcing of the neutrality of the United States and the strengthening of our 
national defense within the limits of peacetime authorizations." 

Subsequently on May 7, 1910, Congress passed a resolution "to remove any 
doubt" that §5(b) authorized certain aspects of the freeze order. The Report 
of the Senate Banking Committee noted that when Congress passed the Emer- 
gency Banking Act, "it intended to grant to the President all of the powers con- 
ferred upon him by section 5(b) of the Act of October 6, 1917, and to authorize 
him to exercise all of such powers not only in time of war, but during anv other 
period of national emergency." S. Rep. No. 1496, 76th Cong, 3d Sess. 1 (1949). By 
joint resolution, Congress thus approved and confirmed the order and amended 
§5(b) to clarify the President's freeze power over alien property. 54 Stat. 179 
(1940). See United States v. Von Clem?n, 136 F. 2d 968, 970 (2d Cir. 1934), cert 
denied. 320 U.S. 769 (1943) upholding the retroactive validitv of the 1940 joint 
resolution of Congress). 

The original freeze order was an amendment to Executive Order No. 6560 of 
January, 1934, regulating foreign exchange and the export of coin and currency 
and the controls were somewhat similar to those exercised during the First 



160 

World War and during the banking crisis of 1933. This order, covering Norway 
and Denmark was followed by similar Executive orders after other nations were 
invaded or subjected to Axis domination. Eventually Germany, Japan and Italy 
were themselves covered in June and July, 1941. The purpose of the orders was to 
keep the Axis from using billions of dollars of assets in the United States. Boose- 
velt Papers (1940 vol.), pp. 133-34. Regulations issued by the Secretary of the 
Treasury, pursuant to a general delegation of Presidential authority under § 5(b) 
made in 1942, continues to this date to serve as the basis for blocking trade and 
financial transactions with North Korea, Cuba and North Vietnam. See 31 C.F.R. 
part 500 et seq.; Executive Order 9193, sec. 3, July 6, 1942, 7 Fed. Reg. 5205, and 
Executive Order 9989, Aug. 20, 1948, 13 Fed. Reg. 4891. 

IV. CONSUMER CREDIT CONTROLS 

Four months before the United States entered World War II, President Roose- 
velt issued Executive Order No. 8843, which directed the Federal Reserve Board 
to impose consumer installment credit controls as a measure to fight inflation, 6 
Fed. Reg. 4035 (1941). The order was issued on August 9, 1941, under §5(b) 
"in order, in the national emergency declared by me on May 27, 1941, to promote 
the national defense and protect the national economy. ..." 6 Fed. Reg. 4035 
(1941). On May 27, 1941, the President had issued Proclamation No. 2487 which 
proclaimed that "an unlimited national emergency confronts this country, which 
requires that its military, naval, air and civilian defense be put on the basis of 
readiness to repel any and all acts or threats of aggression directed toward any 
part of the Western Hemisphere." 

In Executive Order 8843 the term "banking institution" as used in §5(b), 
was defined to include any person engaged in the business of making extensions 
of credit whether a vendor of consumer durable goods or otherwise. The Fed- 
eral Reserve Board was authorized, in order to prevent evasion of the order, to 
regulate any other extension of installment credit, any credit for the purpose of 
purchasing or carrying any consumers' durable goods or any other extension of 
credit in the form of a loan (other than loans to businesses or agricultural enter- 
prises) . 6 Fed. Reg. 4036. 

There was some suggestion at the time that the definition of banking in- 
stitution to include vendors of "consumer durable goods" was beyond the power 
conferred by § 5(b). One writer noted that the President had "disclosed hitherto 
unsuspected potentialities" in § 5(b) by using this definition of banking institu- 
tions and that a clearer statutory basis would be desirable for such controls. 
Note, Federal Regulation of Consumer Credit by Executive Order. 44 Column L. 
Rev. 1287, 1289 (1941)). See also Pride Control Bill, Hearings on H.R. 5^79 
before the House Banking and Currency Committee, 77th Cong., 1st Sess., pp. 
116-117 (1941). Nevertheless, the controls were accepted once the order was 
issued and never challenged in court. In December, 1941, Congress passed the First 
War Powers Act (55 Stat. 839) which included a provision approving and ratify- 
ing actions which had been taken under § 5 ( b ) . thus apparently approving Ex- 
ecutive Order No. 8843. 

After World War II. Congress on four occasions took legislative action con- 
cerning imposition by the Federal Reserve Board of consumer credit controls 
pursuant to § 5(b). The four actions by Congress are as follows : 

(1) The Congress passed a joint resolution in 1947 which provided that after 
November 1, 1947, the Federal Reserve Board was not to exercise consumer-credit 
controls pursuant to Executive Order No. 8843. 61 Stat. 921, 12 U.S.C. 249. The 
joint resolution also provided that no "such consumer credit controls" could be 
exercised except during wartime or any national emergency thereafter declared 
by the President. , ._ .. 

The legislation took this form because President Truman had decided to 
place the issue of the continuation of controls "in the laps of Congress" rather 
than rescind the controls himself by revoking the Executive order. 93 Cong. Rec. 
97.17. The legislative history of the 1947 resolution shows that Congress intended 
that the President have the power, if needed, to make such controls effective 
against the day after the resolution by declaring a new national emergency. See 
98 Cong. Rec. 9753, 9758-59. . 

(2) On August 1Q. 1948, Congress changed its policy and authorized the fed- 
eral Reserve Board, "notwithstanding" the 1947 joint resolution, to exercise con- 
sumer-credit controls in accordance with and to carry out the purposes of ex- 
ecutive Order No. 8843. 62 Stat. 1291. 



161 

The legislative history of the 1948 act again affirms Congressional intent that 
the President retain his authority under Executive Order No. 8843 to exercise 
consumer credit controls thereafter during time of war or national emergency. It 
also made clear that he could have reimposed them on his own without the 1948 
resolution. The House report noted : 

"When the Congress terminated the controls over consumer credit pursuant to 
the provision of [12 U.S.C. 249], it specifically provided that such termination 
did not affect the authority to reimpose such controls during the time of war or 
any national emergency declared by the President. The President has evidently 
not seen fit to use this authority to reinstate the regulation of consumer credit 
and henceforth, the Committee proposes in this joint resolution for Congressional 
enactment of such powers for a temporary period with respect to consumer in- 
stallment credit and at the same time reserve the authority to exercise consumer 
credit controls thereafter during the time of war or declaration of any national 
emergency by the President, H.R. Rep. No. 2155, 80th Cong., 2d Sess. 5-6 (1948). 

The 1948 authority expired June 30, 1949. 

(3) In § <;ni of the Defense Production Act of 1950, using language patterned 
closely on that of the 1948 enactment, Congress again gave the Federal Reserve 
Board authority to exercise consumer credit controls under Executive Order No. 
8843 "notwithstanding" the 1947 joint resolution. 64 Stat. 812. 

(4) In June, 1952, while extending other parts of the act, including § 602, Con- 
gress repealed § 601, 66 Stat. 305. Repealing § 601 appeared to restore the provi- 
sions of the 1947 joint resolution (12 U.S.C. 249) authorizing the impositions of 
consumer credit controls again during a war or a iieriod of national emergency. 

V. FOREIGN DIRECT INVESTMENT PROGRAM 

Section 5(b) was also used as authority for the Foreign Direct Investment 
Program in 1968. Under E.O. 11387 of January 1. 1968, controls were imposed 
by President Johnson over transfers of capital to foreign countries by substantial 
investors in the United States. A formal opinion was issued by Attorney General 
Ramsey Clark upholding the program. The opinion reviews the history of §5(b). 
It also discusses the continuation of the national emergency declared by Presi- 
dent Truman in Proclamation 2914 of December 16. 1950, which referred to the 
hostilities in Korea and the world menace of the forces of communist aggression. 
42 Op. A..G. No. 35. The order relies on the continuation of this emergency. 

On March 2. 1973. a Federal district court judge ruled orally that §5(b) did 
not authorize an indictment charging a violation of the foreign direct invest- 
ment program. The existence of a national emergency was not raised, however. 
An appeal is now heing prepared. United states v. Ryan, Crim. No. 2038-78 
(D.D.C. 1!>73). E.O. 11387 continues in effect today. 

VI. EXPORT CONTROLS 

Most recently, §5(b) was used for a month in 1972 when it was invoked by 
President Nixon as authority for the regulations of exports. E.O. 11677 of 
August 1. 1972. Section 5ih) was used in this situation because the existing law 
authorizing export controls, the Export Administration Act of 1969. S3 Stat. 
S41, as amended hy 86 Stat. 133. had expired. When export control legislation was 
re-enacted, E.O. li677 was revoked by E.O. 11683 of August 29, 1972. 

The Executive order imposing controls recited the continued existence of the 
national emergencies declared hy Proclamation No. 2914 of December 16, 1950, 
referred to above, and by Proclamation No. 4074 of August 15, 1971, which im- 
posed a supplemental duty on imports for balance of payments purposes. 



50 U.S.C. App. 5. Suspension of Provisions Relating to Ally of Enemy : Regu- 
lation of Transactions in Foreign Exchange of Gold or Silver, Property 
Transfers, Vested Interests, Enforcement and Penalties 

(a) The President, if ho shall find it compatible with the safety of the United 
States and with the successful prosecution of the war, way, by proclamation, 
suspend the provisions of this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this 
Appendix] so far as they apply to an ally of enemy, and he may revoke or renew 
such suspension from time to time ; and the President may grant licenses, spe- 



162 

cial or general, temporary or otherwise, and for such period of time and con- 
taining such provisions and conditions as he shall prescribe, to any person or 
class of persons to do business as provided in subsection (a) of section four 
hereof [section 4(a) of this Appendix], and to perform any act made unlawful 
without such license in section three hereof [section 3 of this Appendix], and 
to file and prosecute applications under subsection (b) of section ten hereof 
[section 10(b) of this Appendix] ; and he may revoke or renew such licenses 
from time to time, if he shall be of opinion that such grant or revocation or re- 
newal shall be compatible with the safety of the United States and with the 
successful prosecution of the war ; and he may make such rules and regulations, 
not inconsistent with law, as may be necessary and proper to carry out the 
provisions of this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this Appendix] ; and 
the President may exercise any power or authority conferred by this Act [said 
sections] through such officer or officers as he shall direct. 

If the President shall have reasonable cause to believe that any act is about 
to be performed in violation of section three hereof [section 3 of this Appendix] 
he shall have authority to order the postponement of the performance of such 
act for a period not exceeding ninety days, pending investigation of the facts by 
him. 

(b) (1) During the time of war or during any other period of national emer- 
gency declared by the President, the President may, through any agency that he 
may designate, or otherwise, and under such rules and regulations as he may pre- 
scribe, by means of instructions, licenses, or otherwise — 

(A) investigate, regulate, or prohibit, any transactions in foreign exchange, 
transfers of credit or payments between, by, through, or to any banking institu- 
tion, and the importing, exporting, hoarding, melting, or earmarking of gold 
or silver coin or bullion, currency or securities, and 

(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, 
any acquisition holding, withholding, use, transfer, withdrawal, transportation, 
importation or exportation of, or dealing in, or exercising any right, power, or 
privilege with respect to or transactions involving any property in which any 
foreign country or a national thereof has any interest, by any person, or with 
respect to any property, subject to the jurisdiction of the United States; and 
any property of interest of any foreign country or national thereof shall vest, 
when, as, and upon the terms, directed by the President, in such agency or 
person as may be designated from time to time by the President, and upon 
such terms and conditions as the President may prescribe such interest or 
property shall be held, used, administered, liquidated, sold, or otherwise dealt 
with in the interest of and for the benefit of the United States, and such 
designated agency or person may perform any and all acts incident to the ac- 
complishment or furtherance of these purposes ; and the President shall, in 
the manner hereinabove provided, require any person to keep a full record 
of, and to furnish under oath, in the form of reports or otherwise, com- 
plete information relative to any act or transaction referred to in this sub- 
division either before, during, or after the completion thereof, or relative to 
any interest in foreign property, or relative to any property in which any for- 
eign country or any national thereof has or has had any interest, or as may be 
otherwise necessary to enforce the provisions of this subdivision, and in any 
case in which a report could be required, the President may, in the manner here- 
inabove provided, require the production, or if necessary to the national security 
or defense, the seizure, of any books of account, records, contracts, letters, 
memoranda, or other papers, in the custody or control of such person ; and the 
President may, in the manner hereinabove provided, take other and further 
measures not inconsistent herewith for the enforcement of this subdivision. 

(2) Any payment, conveyance, transfer, assignment, or delivery of property 
or interest therein, made to or for the account of the United States, or as other- 
wise directed, pursuant to this subdivision or any rule, regulation, instruction, or 
direction issued hereunder shall to the extent thereof be a full acquittance and 
discharge for all purposes of the obligation of the person making the same; and 
no person shall be held liable in any court for or in respect to anything done or 
omitted in good faith in connection with the administration of, or in pursuance of 
and in reliance on, this subdivision, or any rule, regulation, instruction, or direc- 
tion issued hereunder. 

(3) As used in this subdivision the term "United States" means the United 
States and any place subject to the jurisdiction thereof: Provided, however. That 



163 

the foregoing shall not be construed as a limitation upon the power of the Presi- 
dent, which is hereby conferred, to prescribe from time to time, definitions, not 
inconsistent with the' purposes of this subdivision, for any or all of the terms used 
in this subdivision. Whoever willfully violates any of the provisions of this sub- 
division or of any license, order, rule or regulation issued thereunder, shall upon 
conviction, be fined not more than $10,000, or, if a natural person, may be impris- 
oned for not more than ten years, or both ; and any officer, director, or agent of 
any corporation who knowingly participates in such violation may be punished by 
a like fine, imprisonment, or both. As used in this subdivision, the term "person" 
means an individual, partnership, association, or corporation. (Oct. 6, 1917, ch. 
196, § 5, 40 Stat. 415: Sept. 24. 1918, ch. 176. § 5. 40 Stat. 966; Mar. 9, 1933. ch. 1, 
§ 2, 48 Stat. 1 ; May 7, 1940, ch. 185, § 1, 54 Stat. 179 ; Dec. 18. 1941, ch. 598, title 
III. § 301, 55 Stat. 839; Proc. No. 2695, July 4, 1946, 11 F.R. 7517, 60 Stat. 1352.) 
[See 12 U.S.C. 95 and 95a. Supra.] 

10 U.S.C. 673. BEADY RESERVE 

(a) In time of national emergency declared by the President after January 1, 
1953, or when otherwise authorized by Jaw, an authority designated by the Secre- 
tary concerned may. without the consent of the persons concerned, order any 
unit, and any member not assigned to a unit organized to serve as a unit, in the 
Ready Reserve under the jurisdiction of that Secretary to active duty (other than 
for training) for not more than 24 consecutive months. 

(b) To achieve fair treatment as between members in the Ready Reserve who 
are being considered for recall to duty without their consent, consideration shall 
be given to — 

(1) the length and nature of previous service, to assure such sharing of expo- 
sure to hazards as the national security and military requirements will reasonably 
allow ; 

(2) family responsibilities; and 

(3) employment necessary to maintain the national health, safety, or interest. 

The Secretary of Defense shall prescribe such policies and procedures as he con- 
siders necessary to carry out this subsection. He shall report on those policies 
and procedures at least once a year to the Committee on Armed Services of the 
Senate and the House of Representatives. 

(c) Not more than 1,000.000 members of the Ready Reserve may be on active 
duty (other than for training), without their consent under this section at any 
one time. (Aug. 10. 1956. ch. 1041. 70A Stat. 28; Sept. 2, 1958, Pub. L. 85-861, §§ 1 
(14), 33(a) (5), 72 Stat. 1441, 1564.) 



Note— Excerpt From House Report 1066, 82d Cong., 2d Sess. (1952) 
national emergency declared by the president 

In time of national emergency proclaimed by the President, or when other- 
wise authorized by lair, any member of the Ready Reserve may be ordered to 
active duty without his consent for such period of time not to exceed 24 consecu- 
tive months, but no member could be ordered to active duty, under the committee 
amendment, until the Congress had determined the number of members needed for 
the national security. Members may be ordered as individuals or as units, but as 
in the previous subsection, the Committee has provided a safeguard against the 
ordering of individual members of units organized to serve as units. This provision 
would apply only in a future national emergency proclaimed by the President but 
would retain in effect the authority to order such members to active duty under 
section 21 of the UMTS Act with the limitations contained therein. 

At present time all members of the Naval Reserve, Marine Corps Reserve, and 
the Coast Guard Reserve, may be ordered to active duty in time of Presidential 
emergency for the duration of the emergency and for six months thereafter. In 
addition, the President may. at any time, call out the National Guard and Air 
National Guard to enforce the laws of the United States, to quell insurrection, 
and in case of actual or threatened invasion. As far as the Naval Reserve, Marine 
Corps Reserve, and Coast Guard Reserve are concerned, this subsection repre- 
sents a substantial decrease in the number and the period of service of reservists 
liable to be ordered to active duty in time of Presidential emergency. 



164 

Note — Excerpts From House Report 1066, 82d Cong., 2d Sess. (1952) 
the ready reserve 

The Ready Reserve defined by this section would contain those portions of the 
reserve components which would be most liable for active duty and which would 
be subject to call in time of war, or national emergency declared by the President 
or the Congress, or when otherwise authorized by law. The last phrase includes 
authority to order reservists to active duty pursuant to section 21 of the Universal 
Military Training and Service Act which is not affected by this bill. 

Note, however, that under section 234(b) , which authorizes the ordering of the 
Ready Reserve to active duty in time of national emergency declared by the 
President, the Congress must first determine the number of members who may be 
so ordered. 

The Ready Reserve would be the only part of the reserve components which 
could be used in a Presidential emergency without further congressional action. 
At the present time, all of the Naval Reserve, Marine Corps Reserve, and Coast 
Guard Reserve could be called to active service in a Presidential emergency. In 
addition, the entire National Guard and the entire Air National Guard is now 
callable by the President in case of threatened or actual invasion, insurrection, 
or to execute the Federal laws. 

NOTE 

Under this provision 1,000,000 men can be called to active duty. In addition, the 
National Guard can be federalized in a national emergency, which adds several 
thousand men to the total. In time of national emergency, therefore, in addition 
to existing armed forces at least eight divisions of troops, over 100 squadrons of 
aircraft and 55 ships, can be activated by order of the President. 



40 U.S.C. 278b. Same; Exception of Certain Vital Leases During War or 

Emergency 

The provisions of section 278a of this title shall not apply during war or a 
national emergency declared, by Congress or by the President to such leases or 
renewals of existing leases of privately or publicly owned property as are certified 
by the Secretary of the Army or the Secretary of the Navy, or by such person or 
persons as he may designate, as covering premises for military, naval, or civilian 
purposes necessary for the prosecution of the war or vital in the national emer- 
gency. (Apr. 28, 1942, ch. 249, 56 Stat. 247.) 



Note — Excerpt From House Report 2029, 77th Cong., 2d Sess. (1942) 

The Committee on Expenditures in the Executive Departments, to whom was 
referred the bill (S. 2212) to suspend during a national emergency declared by 
Congress or by the President the provisions of section 322 of the Act of June 30, 
1932, as amended, having considered the same, report favorably thereon with 
recommendation that it do pass with amendments. 

The purpose of the proposed legislation is to render inapplicable to leases 
entered into by the Government for national defense purposes the present re- 
strictions of section 322 of the Act of June 30, 1932, as amended (40 U.S.C. 278A), 
that the annual rental of properties leased may not exceed 15 percent of the 
market value of the premises on that date of the lease, and the further restriction 
that alterations, improvements, and repairs may not be made in an amount in 
excess of 25 percent of the amount of the rent for the first year of the rental 
term, or for the entire rental term if the lease runs for less than one year. 

Testimony given by witnesses from the War Department indicates that these 
restrictions are impracticable in connection with leases of premises for the estab- 
lishment of information and filter centers as part of aircraft warning service 
installations, and also in many other types of national defense leases, as, for 
example, the leasing of properties for use as offices and warehouses, for storage 
or manufacturing purposes. Navy Department expressed concurrence in these 
observations. 



165 

The Committee concurs iu the view that all leases which are to be exempted 
from the provisions of section 322 of the Act of June 30, 1932, as amended, should 
be certified by the Secretary of War or the Secretary of the Navy, or their 
authorized representatives, as covering premises for military, naval, or civilian 
purposes necessary for the prosecution of the war or vital in the national emer- 
gency. The bill, as introduced, was amended by the Senate by insertion of appro- 
priate language to this effect. This language will require Executive departments 
or establishments other than the War and Xavy Departments to obtain a cer- 
tificate from an authorized representative of the Secretary of War or the Secre- 
tary of the Xavy to the effect that the lease in question is necessary for the 
prosecution of the war or vital in the national emergency. If no such certificate 
is obtained, the existing restrictions, which in the judgment of the Committee are 
desirable where prosecution of the war effort is not involved, will be applicable. 



41 U.S.C. 252. Purchases axd Contracts for Property 

(a) Applicability of chapter: delegation of authority. 

Executive agencies shall make purchases and contracts for property and serv- 
ices in accordance with the provisions of this chapter and implementing regula- 
tions of the Administrator ; but this chapter does not apply — 

(1) to the Department of Defense, the Coast Guard, and the National Aero- 
nautics and Space Administration, or 

(2) when this chapter is made inapplicable pursuant to section 474 of Title 40 
or any other law, but when this chapter is made inapplicable by such provision 
of law. sections 5 and 8 of this title shall be applicable in the absence of authority 
conferred by statute to procure without advertising or without regard to said 
section 5 of this title. 

(b) Small business concerns; share of business; advance publicity on nego- 
tiated purchases and contracts for property. 

It is the declared policy of the Congress that a fair proportion of the total 
purchases and contracts for property and services for the Government shall be 
placed with small business concerns. Whenever it is proposed to make a contract 
or purchase in excess of $10,000 by negotiation and without advertising, pursuant 
to the authority of paragraph (7) or (8) of subsection (c) of this section, suitable 
advance publicity, as determined by the agency head with due regard to the type 
of property involved and other relevant considerations, shall be given for a period 
of at least fifteen days, wherever practicable, as determined by the agency head. 

( c ) Negotiated purchases and contracts for property ; conditions. 

All purchases and contracts for property and services shall be made by adver- 
tising, as provided in section 253 of this title, except that such purchases and 
contracts may be negotiated by the agency head without advertising if — 

(1) determined to be necessary in the public interest during the period of a 
national emergency declared hy the President or by the Congress; 

(2) the public exigency will not admit of the delay incident to advertising; 
(.''»> the aggregate amount involved does not exceed $2,500; 

( 4 ) for personal or professional services ; 

(5) for any service to be rendered by any university, college, or other educa- 
tional institution ; 

( C> i the property or services are to be procured and used outside the limits of 
the United States and its possessions ; 

( 7 ) for medicines or medical property : 

(8) for property purchased for authorized resale ; 

(9) for perishable or nonperishable subsistence supplies ; 

(10) for property or service for which it is impracticable to secure competition ; 

(11) the agency head determines that the purchase or contract is for experi- 
mental, developmental or research work, or for the manufacture or furnishing of 
property for experimentation, development, research, or test ; 

(12) for property or services as to which the agency head determines that the 
character, ingredients, or components thereof are such that the purchase or con- 
tract should not be publicly disclosed ; 

(13) for equipment which the agency head determines to be technical equip- 
ment, and as to which he determines that the procurement thereof without adver- 
tising is necessary in special situations or in particular localities in order to 



166 

assure standardization of equipment and interchangeability of parts and that such 
standardization and interchangeability is necessary in the public interest; 

(14) for property or services as to which the agency head determines that bid 
prices after advertising therefor are not reasonable (either as to all or as to 
some part of the requirements) or have not been independently arrived at in open 
competition : Provided, That no negotiated purchase or contract may be entered 
into under this paragraph after the rejection of all or some of the bids received 
unless (A) notification of the intention to negotiate and reasonable opportunity 
to negotiate shall have been given by the agency head to each responsible bidder 
and (B) the negotiated price is the lowest negotiated price offered by any respon- 
sible supplier ; or 

(15) otherwise authorized by law, except that section 254 of this title shall 
apply to purchases and contracts made without advertising under this paragraph. 

(d) Bids in violation of antitrust laws. 

If in the opinion of the agency head bids received after advertising evidence 
any violation of the antitrust laws, he shall refer such bids to the Attorney 
General for appropriate action. 

( e ) Exceptions to section. 

This section shall not be construed to (A) authorize the erection, repair, or 
furnishing of any public building or public improvement, but such authorization 
shall be required in the same manner as heretofore, or (B) permit any contract 
for the construction or repair or buildings, roads, sidewalks, sewers, mains, or 
similar items to be negotiated without advertising as required by section 253 
of this title, unless such contract is to be performed outside the continental United 
States or unless negotiations of such contract is authorized by the provisions of 
paragraphs (1) — (3), (10) — (12), or (14) of subsection (c) of this section. 

(f ) Carriage of cargo ; specification of container size. 

No contract for the carriage of government property in other than government- 
owned cargo containers shall require carriage of such property in cargo containers 
of any stated length, height, or width. (June 30, 1949, ch. 288, title II, §302, 63 
Stat. 393; July 12, 1952, ch. 703, § 1 (m), 66 Stat. 594; Aug. 28, 1958, Pub. L. 
85-800; § § 1-3, 72 Stat. 966; Nov. 8, 1965, Pub. L. 89-343, § § 1, 2, 79 Stat. 1303; 
Nov. 8, 1965, Pub. L. 89-348, § 1(2), 79 Stat. 1310; Mar. 16, 1968, Pub. L. 90-268, 
§4, 82 Stat. 50.) 

Note — Excerpts from House Report 670, 81st Cong., 1st Sess. (1949) 

title iii. procurement procedure 

This title follows in structure, and is identical in language with the Armed 
Services Procurement Act, with a few appropriate changes and omissions. 

Section 301. Declaration of purpose — 

This section states that the purpose of title III is to facilitate the procure- 
ment of supplies and services. 

Section 302. Application and procurement methods — 

* * * * * * * 

(c) Initially, this subsection reaffirms the basic principle that purchases and 
contracts shall be made by advertising. Negotiation is made permissible in cer- 
tain excepted cases, however, to provide flexibility in Government procurement. 

(1) This paragraph would permit automatic and immediate transition from 
more rigid peacetime advertising procedures to a completely flexible system if 
the President or the Congress declares the existence of a national emergency. 

31 U.S.C. 203. Assignments of Claims; Set-off Against Assignee 

All transfers and assignments made of any claim upon the United States, or 
of any part or share thereof, or interest therein, whether absolute or conditional, 
and whatever may be the consideration therefor, and all powers of attorney, 
orders, or other authorities for receiving payment of any such claim, or of any 
part or share thereof, except as hereinafter provided, shall be obsolutely null 
and void, unless they are freely made and executed in the presence of at least 
two attesting witnesses, after the allowance of such a claim, the ascertainment 
of the amount due, and the issuing of a warrant for the payment thereof. Such 
transfers assignments and powers of attorney must recite the warrant for pay- 
ment and must be acknowledged by the person making them before an officer 



167 

having authority to take acknowledgements of deeds, and shall be certified by 
the officer; and it must appear by the certificate that the officer, at the time 
of the acknowledgement, read and fully explained the transfer, assignment, or 
warrant of attorney to the person acknowledging the same. The provisions of 
this section shall not apply to payments for rent of post office quarters made by 
postmasters to duly authorized agents of the lessors. 

The provisions of the preceding paragraph shall not apply in any case in which 
the moneys due or to become due from the United States or from any agency 
or department thereof under a contract providing for payments aggregating 
$1,000 or more, are assigned to a bank, trust company, or other financing insti- 
tution, including any Federal lending agency : Provided, 

1 That in the case of any contract entered into prior to October 9, 1940, 
no 'claim shall be assigned without the consent of the head of the department 
or agency concerned ; ft 1ftilA 

2 That in the case of any contract entered into after October 9, 1940, no 
claim shall be assigned if it arises under a contract which forbids such 
assignment ; 

3. That unless otherwise expressly permitted by such contract any such assign- 
ment shall cover all amounts payable under such contract and not already paid, 
shall not be made to more than one party, and shall not be subject to further 
assignment, except that any such assignment may be made in one party as 
agent or trustee for two or more parties participating in such financing; 

4. That in the event of any such assignment, the assignee thereof shall file 
written notice of the assignment together with a true copy of the instrument of 
assignment with (a) the contracting officer or the head of his department or 
agency ; ( b ) the surety or sureties upon the bond or bonds, if any, in connection 
with such contract: and (c) the disbursing officer, if any, designated in such 
contract to make payment. 

Notwithstanding any law to the contrary governing the validity of assign- 
ments, any assignment pursuant to this section, shall constitute a valid assign- 
ment for all purposes. 

In any case in which moneys due or to become due under any contract are 
or have been assigned pursuant to this section, no liability of any nature of 
the assignor to the United States or any department or agency thereof, whether 
arising from or independently of such contract, shall create or impose any 
liability on the part of the assignee to make restitution, refund, or repayment 
to the United States of any amount heretofore since July 1, 1950, or hereafter 
received under the assignment. 

Any contract of the Department of Defense, the General Services Adminis- 
tration, tltc Atomic Energy Commission, or any other department or agency of 
the United States designated by the President, except any such contract 
Hinder which full payment has been made, may, in time of war or national 
emergency proclaimed by the President (including the national emergency pro- 
claimed December 16, 1950) or by Act or joint resolution of the Congress and 
until such irur or national emergency has been terminated in such manner, 
provide or be amended without consideration to provide that payments to be 
made to the assignee of any moneys due or to become due under such contract 
shall not be subject to reduction or set-off, and if such provision or one to the 
same general effect has been at any time heretofore or is hereafter included 
or inserted in any such contract, payments to be made thereafter to an assignee 
of any moneys due or to become due under such contract, whether during or 
after such war or emergency, shall not be subject to reduction or set-off for any 
liability of any nature of the assignor to the United States or any department 
or agency thereof which arises independently of such contract, or hereafter for 
any liability of the assignor on account of (1) renegotiation under any rene- 
gotiation statute or under any statutory renegotiation article in the contract, 
(2) fines. (3) penalties (which term does not include amounts which may be 
collected or withheld from the assignor in accordance with or for failure 
to comply with the terms of the contract), or (4) taxes, social security contri- 
butions, or the withholding or nonwithholding of taxes or social security con- 
tributions, whether arising from or independently of such contract. 

Except as herein otherwise provided, nothing in this section shall be deemed 
to affect or impair rights or obligations heretofore accrued. (R.S. §3477: 
May 27, 1908, ch. 206, 35 Stat. 411: Oct. 9, 1940, ch. 779, §1. 54 Stat. 1029; 
May 15, 1951, ch. 75, 65 Stat. 41.) 



66-474 O - 76 - 12 



168 

Note— Excerpt From Senate Report 217, 82d Cong., 1st Sess. (1951) 

The purpose of this enactment was to encourage the participation of banks in 
the financing of Government contractors under the defense program of that 
time. It permitted contractors to assign to financing institutions moneys due or 
to become clue under their Government contracts, and it assured the assignee 
banks that, when payments were made to them by the Government pursuant 
to such assignments, such payments would not be subject to reduction or set- 
off on account of any claims the Government might have against the contractor 
arising independently of the assigned contract. 

Enacted of S. 988, with Committee amendments, would make it clear that a 
bank or other financing institution taking an assignment of claims pursuant to 
the act would not be subject to later recovery by the Government of amounts 
previously paid to the bank as assignee, except, of course, that it would not 
prevent the Government from obtaining restitution of amounts which may have 
been paid as the result of fraud. 

Second, the amendment would continue the provision of the present law that, 
if an assigned contract contains a "no set-off" clause, payments made by the 
Government to the assignee bank will not be subject to reduction or set-off be- 
cause of any claims of the Government against the contractor which arise in- 
dependently of the contract, but it would also be made clear that the assignee 
would be protected against set-off on account of claims of the Government 
against the contractor arising from renegotiation, fines, and penalties — claims 
which are ordinarily regarded as arising outside of the assigned contract. In 
any event, however, where the Government has claims against the contractor, 
the Government would be allowed to withhold, out of payments due to an 
assignee bank, any amounts in excess of the bank's interest in loans secured by 
such assignments. 

Finally, the authority for including the "no set-off" clause in Government 
contracts, which is now restricted to the Departments of the Army, Navy, and 
Air Force, would be extended to contracts entered into by the General Services 
Administration, the Atomic Energy Commission, and such other agencies of 
the Government as the President may designate. However, authority for the 
inclusion of the clause would not be mandatory — it would be permissive in 
all cases at the discretion of the Government agencies concerned. 



41 U.S.C. 15. Transfers of Contracts ; Assignment of Claims ; Set-Off 

Against Assignee 

No contract or order, or any interest therein, shall be transferred by the 
party to whom such contract or order is given to any other party, and any such 
transfer shall cause the annulment of the contract or order transferred, so far 
as the United States is concerned. All rights of action, however, for any 
breach of such contract by the contracting parties, are reserved to the United 
States. 

The provisions of the preceding paragraph shall not apply in any case in which 
the moneys clue or to become due from the United States or from any agency or 
department thereof, under a contract providing for payments aggregating $1,000 
or more, are assigned to a bank, trust company, or other financing institution, 
including any Federal lending agency : Provided, 1. That in the case of any 
contract entered into prior to October 9, 1940, no claim shall be assigned without 
the consent of the head of the department or agency concerned; 2. That in 
the case of any contract entered into after October 9, 1940, no claim shall be 
assigned if it arises under a contract which forbids such assignment ; 3. That 
unless otherwise expressly permitted by such contract any such assignment 
shall cover all amounts payable under such contract and not already paid, shall 
not be made to more than one party, and shall not be subject to further assign- 
ment, except that any such assignment may be made to one party as agent or 
trustee for two or more parties participating in such financing ; 4. That in the 
event of any such assignment, the assignee thereof shall file written notice of the 
assignment together with a true copy of the instrument of assignment with (a) 
the contracting officer or the head of his department or agency ; (b) the surety 
or sureties upon the bond or bonds, if any, in connection with such contract ; 



169 

and (c) the disbursing officer, if any, designated in such contract to make 
payment. 

Notwithstanding any law to the contrary governing the validity of assign- 
ments, any assignment pursuant to this section shall constitute valid assign- 
ment for all purposes. 

In any case in which moneys due or to become due under any contract are or 
have been assigned pursuant to this section, no liability of any nature of the 
assignor to the United States or any department or agency thereof, whether 
arising from or independently of such contract, shall create or impose any 
liability on the part of the assignee to make restitution, refund, or repayment 
to the United States of any amount heretofore since July 1, 1950, or hereafter 
received under the assignment. 

Any contract of the Department of Defense, the General Services Administra- 
tion, the Atomic Energy Commission, or any other department or agency of the 
United States designated by the President, except any such contract under 
which full payment has been made, may, in time of war or national emergency 
proclaimed by the President {including the national emergency proclaimed 
December 16, 1950) or by Act or joint resolution of the Congress and until such 
war or national emergency has been terminated in such manner, provide or be 
amended without consideration to provide that payments to be made to the 
assignee of any moneys due or to become due under such contract shall not be 
subject to reduction or set-off, and if such provision or one to the same general 
effect has been at any time heretofore or is hereafter included or inserted in 
any such contract, payments to be made thereafter to an assignee of any moneys 
due or to become under such contract whether during or after such war 
or emergency, shall not be subject to reduction or set-off for any liability of any 
nature of the assignor to the United States or any department or agency thereof 
which arises independently of such contract, or hereafter for any liability of 
the assignor on account of (1) renegotiation under any renegotiation statute 
or under any statutory renegotiation article in the contract, (2) fines, (3) 
penalties (which term does not include amounts which may be collected or with- 
held from the assignor in accordance with or for failure to comply with the 
terms of the contract), or (4) taxes, social security contributions, or the with- 
holding or nonwitholding of taxes or social security contributions, whether 
arising from or independently of such contract. 

Except as herein otherwise provided, nothing in this section shall be deemed to 
affect or impair rights or obligations heretofore accrued. (R. S. §3737; Oct. 9, 
1940, ch. 779, § 1, 54 Stat. 1029; May 15, 1951, ch. 75, 65 Stat. 41.) 



Note — Excerpt From Senate Report 217, 82d Cong., 1st Sess. (1951) 

The Committee on Banking and Currency, to whom was referred the bill 
(S. 998) to facilitate the financing of defense contracts by banks and other 
financing institutions, to amend the Assignment of Claims Act of 1940, and for 
other purposes, having considered the same, report favorably thereon with 
amendments and recommend that the bill, as amended, do pass. 

***** * * 

Enactment of S. 99S, with Committee amendment, would make it clear that a 
bank or other financing institution taking an assignment of claims pursuant to 
the act would not be subject to later recovery by the Government of amounts 
previously paid to the bank as assignee, except, of course, that it would not pre- 
vent the Government from obtaining restitution of amounts which may have 
been paid as the result of fraud. 

Secondly, the amendment would continue the provision of the present law 
that, if an assigned contract contains a "no set-off" clause, payments made by 
the Government to the assignee bank will not be subject to reduction or set-off 
because of any claims of the Government against the contractor which arise 
independently of the contract, but it would also be made clear that the assignee 
would be protected against set-off on account of claims of the Government against 
the contractor arising from renegotiations, fines, and penalties — claims which are 
ordinarily regarded as arising outside of the assigned contract. In any event, 
however, where the Government has claims against the contractor, the Govern- 
ment would be allowed to withhold, out of payments due to an assignee bank, 
any amounts in excess of the bank's interest in loans secured by such assignments. 



170 

Finally, the authority for including the "no set-off" clause in Government con- 
tracts, which is now restricted to the Departments of the Army, Navy, and Air 
Force, would be extended to contracts entered into by the General Services Ad- 
ministration, the Atomic Energy Commission, and such other agencies of the 
Government as the President may designate. However, authority for the inclu- 
sion of the clause would not be mandatory — it would be permissive in all cases 
at the discretion of the Government agencies concerned. 

Mr. Roth. Mr. President, as a sponsor of the National Emergencies 
Act, I am pleased with the rapid consideration which the Senate 
is giving to this important legislation. I strongly urge its passage 
today. 

This bill represents another effort by Congress to insure that Con- 
gress and the President share equally the responsibility for major na- 
tional policy decisions. This bill, for the first time, will establish 
criteria under which a national emergency can be declared by the 
President and provides for its automatic termination unless extended 
by Congressional action. 

It also terminates four national emergencies which are still in effect. 
Most Americans do not know that since March 6, 1933, the United 
States has been in an official state of national emergency. The 1933 
emergency was declared to deal with the Depression. In addition, three 
other national emergencies are concurrently in effect — the December 
16, 1950, emergency in connection with the Korean War; the March 23, 

1970, emergency to handle the Post Office strike; and the August 15, 

1971, emergency to carry out certain currency restrictions to help our 
balance of payments. 

Because Congress has been remiss in not terminating these emergen- 
cies, many outdated statutes designed to give the President wide-sweep- 
ing powers to meet the emergency situations of those times remain on 
the books. It is my understanding that in its almost two years of dili- 
gent work, the Special Committee on the Termination of the National 
Emergency compiled some 470 provisions of the United States Code 
which in some way or another delegate extraordinary powers to the 
President in times of war or national emergency. 

It is important and essential that in such times, the President does 
have the powers needed to deal with the situation. But it is also essen- 
tial that when the emergency is over, the emergency powers either 
terminate or are carefully reviewed to insure that they make sound 
and responsible permanent legislation. 

In times of emergency, important legislation does not receive the 
time and attention which it would in normal times. 

One provision that this bill would repeal gives the President, the 
Secretary of the Army, or any general the authority to declare any 
part or all of the United States a military zone, within which any act 
he designates may be punished as a crime. Such a sweeping provision 
represents a potential threat to American liberties and should cer- 
tainly be struck from the books. 

In my judgment, this bill devises a sensible way of insuring that 
rapid action can be taken to meet an emergency situation while safe- 
guarding against the arbitrary and irresponsible use of such power by 
a future President, Under the bill, the President is authorized to de- 



171 

clare a national emergency whenever he believes it "essential to the 
preservation, protection, and defense of the Constitution, and is essen- 
tial to the common defense, safety, or well-being of the territory and 
people of the United States." 

However, the emergency could be terminated by Congress by con- 
current resolution and. if not. would expire at the end of six months 
unless explicitly continued by Congress. Moreover, the President 
would be required during the emergency to keep a list of all Executive 
orders, promulgations, rules, et cetera, made with respect to the emer- 
gency and transmit the texts to Congress. This provision will provide 
a comprehensive overview of all extraordinary acts taken during an 
emergency and a measure of Congressional oversight over such acts. 

I believe that this bill strikes a careful balance between the need for 
the President to act in the case of war or another kind of national 
emergency and the requirements of shared powers and responsibilities 
between Congress and the President. I hope it will be passed today and 
speedily acted upon by the other House and signed into law by the 
President. 

Mr. Mattttas. Mr. President. I urge the adoption of the amendment. 

The Acting President pro tempore. The question is on agreeing to 
the amendment in the nature of a substitute. 

The amendment was agreed to. 

The bill was ordered to be engrossed for a third reading, was read 
the third time, and passed, as follows : 

S. 3957 

An act to terminate certain authorities with respect to national emergencies still 
in effect, and to provide for orderly implementation and termination of future 
national emergencies 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That this Act may be cited as the "National 
Emergencies Act." 

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES 

Sec 101. (a) All powers and authorities possessed by the President, any other 
officer or employee of the Federal Government, or any Executive agency, as 
defined in section 105 of Title 5. United States Code, as a result of the existence 
of any declaration of national emergency in effect immediately prior to one year 
after the date of enactment of this Act are terminated one year from the date of 
such enactment. Such termination shall not affect — 

(1) any action taken or proceeding pending not finally concluded or determined 
on such date ; 

(2) any action or proceeding based on any act committed prior to such date ; or 

(3) any rights or duties that matured or penalties that were incurred prior to 
such date. 

(b) For the purpose of this section, the words "any national emergency in 
effect" mean a general declaration of emergency made by the President pursuant 
to a statute authorizing him to declare a national emergency- 

TITLE II— DECLARATION OF FUTURE NATIONAL EMERGENCIES 

Sec 201. (a) In the event the President finds that a proclamation of a national 
emergency is essential to the preservation, protection and defense of the Con- 
stitution or to the common defense, safety, or well-being of the territory or people 
of the L T nited States, the President is authorized to proclaim the existence of a 
national emergency. Such proclamation shall immediately be transmitted to the 
Congress and published in the Federal Register. 



172 

(b) Any provisions of law conferring powers and authorities to be exercised 
during a national emergency shall be effective and remain in effect ( 1 ) only when 
the President (in accordance with subsection (a) of this section), specifically 
declares a national emergency, and (2) only in accordance with this Act. No law 
enacted after the date of enactment of this Act shall supersede this title unless 
it does so in specific terms, referring to this title, and declaring that the new law 
supersedes the provisions of this title. 

Sec. 202. (a) Any national emergency declared by the President in accordance 
with this title shall terminate if — 

(1) Congress terminates the emergency by concurrent resolution ; or 
1(2) the President issues a proclamation terminating the emergency. 

At the end of each year following the declaration of an emergency which is still 
in effect, the President shall publish in the Federal Register and transmit to 
the Congress a notice stating that the emergency is still in effect. Any national 
emergency declared by the President shall be terminated on the date specified in 
any concurrent resolution referred to in clause (1) of this subsection, and any 
powers or authorities exercised by reason of said emergency shall cease to be 
exercised after such specified date, except that such termination shall not affect — 

(A) any action taken or proceeding pending not finally concluded or de- 
termined on such date ; 

(B) any action or proceeding based on any act committed prior to such date; 
or 

(C) any rights or duties that matured or penalties that were incurred prior 
to such date. 

(b) Not later than six months after a national emergency is declared, and not 
later than the end of each six-month period thereafter that such emergency con- 
tinues, each House of Congress shall meet to consider a vote on a concurrent 
resolution to determine whether that emergency shall be terminated. 

(c) (1) A concurrent resolution to terminate or continue a national emergency 
declared by the President shall be referred to the appropriate committee of the 
House of Representatives or the Senate, as the case may be. One such concurrent 
resolution shall be reported out by such committee together with its recommenda- 
tions within fifteen calendar days, unless such House shall otherwise determine 
by the yeas and nays. 

(2) Any concurrent resolution so reported shall become the pending business 
of the House in question (in the case of the Senate the time for debate shall be 
equally divided between the proponents and the opponents) and shall be voted 
on within three calendar days thereafter, unless such House shall otherwise 
determine by yeas and nays. 

(3) Such a concurrent resolution passed by one House shall be referred to the 
appropriate committee of the other House and shall be reported out by such com- 
mittee together with its recommendations within fifteen calendar days and shall 
thereupon become the pending business of such House and shall be voted upon 
within three calendar days, unless such House shall otherwise determine by yeas 
and nays. 

(4) In the case of any disagreement between the two Houses of Congress with 
respect to a concurrent resolution passed by both Houses, conferees shall be 
promptly appointed and the committee of conference shall make and file a report 
with respect to such concurrent resolution within six calendar days after the 
legislation is referred to the committee of conference. Notwithstanding any rule 
in either House concerning the printing of conference reports in the Record or 
concerning any delay in the consideration of such reports, such report shall be 
acted on by both Houses not later than six calendar days after the conference 
is filed. In the event the conferees are unable to agree within forty-eight hours, 
they shall report back to their respective Houses in disagreement. 

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and 
section 602(b) of this Act are enacted by Congress — 

(A) as an exercise of the rulemaking power of the Senate and the House of 
Representatives, respectively, and as such they are deemed a part of the rules of 
each House, respectively, but applicable only with respect to the procedure to be 
followed in the House in the case of resolutions described by this subsection ; and 
they supersede other rules onlv to the extent that thev are inconsistent therewith ; 
and 

(B) with full recognition of the constitutional right of either House to change 
the rules (so far as relating to the procedure of that House) at any time, in the 



173 

same manner, and to the same extent as in the case of any other rule of that 
House. 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec. 301. Whenever Congress declares war, any provisions of law conferring 
powers and authorities to be exercised during time of war shall be effective from 
the date of such declaration. 

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES 

Sec 401. When the President declares a national emergency no powers or au- 
thorities made available by statute for use in the event of an emergency shall be 
exercised unless and until the President specifies the provisions of law under 
which he proposes that he, or other officers, will act. Such specification may be 
made either in the declaration of a national emergency, or by one or more con- 
temporaneous or subsequent Executive orders published in the Federal Register 
and transmitted to the Congress. 

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS 
OF THE PRESIDENT 

Sec 501. (a) When the President declares a national emergency, or Congress 
declares war, the President shall be responsible for maintaining a file and index 
of all significant orders of the President, including Executive orders and procla- 
mations, and each such Executive agency shall maintain a file and index of all 
rules and regulations, issued during such emergency or war issued pursuant to 
such declarations. 

(b) All such significant orders of the President, including Executive orders, 
and such rules and regulations shall be transmitted to the Congress promptly 
under means to assure confidentiality where appropriate. 

(c) When the President declares a national emergency or Congress declares 
war, the President shall transmit to Congress, within thirty days after the end 
of each three-month period after such declaration, a report on the total expendi- 
tures incurred by the United States Government during such three-month period 
which are directly attributable to the exercise of powers and authorities con- 
ferred by such declaration. Not later than thirty days after the termination of 
each such emergency or war, the President shall transmit a final report on all 
such expenditures. 

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY 
POWER AND OTHER STATUTES 

Sec 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 
1481 (a)) is amended — 

(1) at the end of paragraph (9), by striking out "; or" and inserting in lieu 
thereof a period ; and 

(2) by striking out paragraph (10). 

(b) Section 2667 (b) of Title 10 of the United States Code is amended— 

(1) by inserting -and" at the end of paragraph (3) : 

(2) by striking out paragraph (4) ; and 

(3) by redesignating paragraph (5) as (4). 

(c) The joint resolution entitled "Joint resolution to authorize the temporary 
continuation of regulation of consumer credit," approved August 8, 1947, (12 
U.S.C. 249) is repealed. 

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 
831d(m) ) is repealed. 

(e) Section 1383 of Title 18, United States Code, is repealed. 

(f ) Section 6 of the Act entitled "An Act to amend the Public Health Service 
Act in regard to certain matters of personnel and administration, and for other 
purposes," approved February 28, 1948, is amended bv striking out subsections 

(b), (c), (d), (e), and (f) (42 U.S.C. 211b). 

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742) is 
repealed. 

( h ) This section shall not affect — 

(1) any action taken or proceeding pending not finally concluded or determined 
at the time of repeal ; 

(2) any action or proceeding based on any act committed prior to repeal; or 



174 

(3) any rights or duties that matured or penalties that were incurred prior 
to repeal. 

Sec. 602. (a) The provisions of this Act shall not apply to the following pro- 
visions of law, the powers and authorities conferred thereby, and actions taken, 
thereunder : 

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95(a) ; 
50U.S.C. App. 5(b)) ; 

(2) Section 673 of Title 10, United States Code; 

(3) Act of April 28, 1942 (40 U.S.C. 278b) ; 

(4) Act of June 30, 1949 (41 U.S.C. 252) ; 

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ; 

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15). 

(b) Each committee of the House of Representatives and the Senate having 
jurisdiction with respect to any provision of law referred to in subsection (a) (1)- 
(6) of this section shall make a complete study and investigation concerning 
that provision of law and make a report, including any recommendations and 
proposed revisions it may have, to its respective House of Congress within two 
hundred and seventy days after the date of enactment of this Act. 

Mr. Mansfield. Mr. President, I move to reconsider the vote by 
which the bill was passed. 

Mr. Mathias. I move to lay that motion on the table. 
The motion to lay on the table was agreed to. 
Mr. Mansfield. I thank the Senator from Idaho. 



INTRODUCTION OF H.R. 16668, 93rd CONGRESS 

[Congressional Record — v. 120. Sept. 16. 1974 — pp. H9266. H9296] 

Bill To End Uxtermixated National Emergencies 

The Speaker. Under a previous order of the House, the gentleman 
from New Jersey (Mr. Rodino) is recognized for 5 minutes. 

Mr. Rodixo. Mr. Speaker, most Americans are unaware that they 
have been living under a continuous state of national emergency since 
1933. In fact, there are four states of national emergency now in force : 

The national emergency declared by President Roosevelt on March 
6, 1933, to meet the crisis of the depression ; 

The December 16. 1950, national emergency declared by President 
Truman in order to prosecute the Korean War: 

The national emergency declared by President Nixon on March 23, 

1970. to deal with the Post Office strike ; and 

The national emergency declared by President Nixon on August 15, 

1971. to carry out currency restrictions and foreign economic controls. 
These four declarations of national emergency confer upon the Presi- 
dent the power contained in over 470 emergency statutes to control the 
lives of all American citizens in ways which are justified only in an 
actual emergency. Congress has provided in statutes that during a 
national emergency the President may, among other things, seize 
property and commodities, organize and control the means of produc- 
tion, call to active duty 2.5 million reservists, assign military forces 
abroad, seize and control all means of transportation and communica- 
tion, restrict travel, and institute martial law. 

The exercise of authority under emergency statutes is taking place 
today when no national emergency in fact exists. Therefore. Mr. 
Speaker. I am introducing today a bill to end national emergencies de- 
clared by President- over the past four decades which have never been 
terminated. This proposal also would control the circumstances under 
which national emergencies are declared by Presidents in the future, 
and restrict the exercise of emergency authority to actual emergency 
situations only. 

A similar bill has been introduced in the Senate by Senators Mathias 
and Church and has the support of President Ford. In my view, this 
proposal is important legislation which should be enacted before Con- 
gress adjourns this year. 

It is my hope that this bill will receive the bipartisan support it 
merits. Its enactment would benefit the American people and do credit 
to the Congress by limiting the use of emergency powers to their proper 
context. 

The bill does not take any emergency powers away from the Presi- 
dent. Rather, it insures that such powers are exercised only during an 
actual emergency and that both Congress and the public are kept in- 
formed of the exercise of such emergency powers. 

(175) 



176 

Declarations of national emergency presently in effect are terminated 
by the bill and future declarations of national emergency are limited 
to 180 days unless extended by Congress or declared anew. A system of 
reporting to Congress with respect to the exercise of extraordinary 
authority during a national emergency is established. Finally, certain 
emergency provisions, no longer needed under any circumstances, 
would be repealed if this bill is enacted into law. 









TEXT OF H.R. 16668, 93rd CONGRESS 

A BILL To terminate certain national emergencies still in effect, and to provide for the 
orderly implementation and termination of future national emergencies 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, 

SHORT TITLE 

Section 1. This Act may be cited as the "National Emergencies Act". 

LIMITING THE EXERCISE AND DURATION OF EMERGENCY AUTHORITIES 

Sec. 2. No authority conferred under any law of the United States upon the 
President or upon any other officer, employee, agency, or other entity of the Gov- 
ernment of the United States, as the result of any national emergency, shall be 
exercised except as provided under this Act. Any national emergency declared 
or otherwise designated as in effect on the date of the enactment of this Act is 
terminated on the two hundred and seventieth day after the date of the enact- 
ment of this Act, unless otherwise previously terminated. 

DECLARING NATIONAL EMERGENCIES 

Sec. 3. ( a ) In the event the President finds that the proclamation of a national 
emergency is essential to the preservation, protection, and defense of the Con- 
stitution, and is essential to the common defense, safety, or well-being of the ter- 
ritory and people of the United States, the President is authorized to declare the 
existence of a national emergency. Such declaration shall be made publicly, 
and shall be published as soon as practicable in the Federal Register. 

i l)i Any authority conferred under any law to be exercised during a national 
emergency declared or otherwise designated as in effect by the President shall 
be in effect in accordance with the provisions of that law and this Act, but only 
if the President has declared a national emergency in accordance with this 
section. 

SPECIFYING NATIONAL EMERGENCIES' LEGAL BASIS 

Sec 4. Any authority conferred under any law to be exercised with respect 
to a war or a national emergency shall not be exercised until the President states 
in an Executive order issued with respect to that war or emergency, the specific 
provisions of law under which such authority is to lie exercised. Such Executive 
order shall be transmitted to the Congress forthwith and shall be published as 
soon as practicable in the Federal Register. 

TERMINATING NATIONAL EMERGENCIES 

Sec 5. (a) Except as otherwise provided in subsection (b) or (c) of this 
section, no authority conferred by law to be exercised with respect to a national 
emergency shall be exercised with respect to the emergency after that emergency 
is terminated, and any national emergency declared or otherwise designated in 
effect shall terminate on the one hundred eightieth day after the date of its 
declaration or designation. 

(b) The Congress may by concurrrent resolution — 

(1) determine that the national emergency is terminated on a date prior 
to the date of its termination under the provisions of subsection (a) of this 
section, in which case the emergency terminates on the day the concurrent 
resolution is finally agreed to by both Houses of the Congress, or on the day 
certain designated in the concurrent resolution, but the day certain shall not 

(177) 



178 

be earlier than the day on which the concurrent resolution is finally agreed to 
by both Houses of the Congress ; or 

(2) determine that the national emergency is extended, in which case the 
national emergency terminates on the date to which it has been so extended 
(which date shall not be later than one hundred eighty days after the date 
on which the concurrent resolution is finally agreed to by both Houses of the 
Congress), but no resolution extending the termination date of a national 
emergency shall be valid for the purposes of this paragraph if finally agreed 
to prior to ten days before the date on which such emergency would termi- 
nate unless so extended, 
(c) The President may determine that the national emergency is terminated 
on a date prior to the date of its termination under the provisions of subsection 
(a) or (b) of this section, in which case the emergency terminates on the day 
the President declares in an Executive order it is terminated. 

RECORDS AND REPORTS ON EXERCISE OF AUTHORITIES 

Sec 6. In time of war or national emergency, the President shall cause to be 
maintained a current and accurate record (including an index thereof) of all 
instances of the exercise (including any rules or regulations, by whatever name 
called, established for that exercise) by the President or by any other officer, 
employee, agency, or entity of the Executive branch of the Government of the 
United States, of any authority conferred under law to be used during a war or 
national emergency, or both. Such record shall be made available, for inspection 
or copying, at all times during its maintenance, to either and both Houses of 
Congress, and to such committees of Congress as determined by the Speaker of 
the House and the President pro tempore of the Senate for their respective 
Houses in accordance with the rules of that House, and a copy of the entirety 
of such record shall be transmitted to the Congress upon the termination of the 
war or emergency with respect to which such record was kept. The Houses of 
Congress, its committees, Members, officers, and employees shall take such steps 
as are necessary to assure the proper confidentiality of any such record so 
available. 

NO REPEAL BY IMPLICATION 

Sec. 7 No law enacted after the date of the enactment of this Act shall be 
construed to repeal or supersede this Act unless it does so in specific terms, 
referring to this Act, and declaring that the new law supersedes the provisions 
of this Act. 

REPEAL OF CERTAIN NATIONAL EMERGENCY PROVISIONS 

Sec 8. The following provisions of law are repealed : 

(7 U.S.C. 1741), (7 U.S.C. 1742), (7 U.S.C. 1743), (7 U.S.C. 1744), (7 
U.S.C. 1745), (7 U.S.C. 1746), (7 U.S.C. 1747), (8 U.S.C. 1481(a) (10)), (10 
U.S.C. 2667(b) (4) ), (10 U.S.C. 4025), (10 U.S.C. 9025), (12 U.S.C. 95), (12 
U.S.C. 95(a)), (12 U.S.C. 249), (12 U.S.C. 1703), (12 U.S.C. 1705), (12 
U.S.C. 1748b (a) ), (16 U.S.C. 831d(m)), (18 U.S.C. 1383), (26 U.S.C. 168), 
(41 U.S.C. 101), (41 U.S.C. 102), (41 U.S.C. 103), (41 U.S.C. 104), (41 U.S.C. 
105), (41 U.S.C. 106), (41 U.S.C. 107), (41 U.S.C. 108), (41 U.S.C. 109), 
(41 U.S.C. 110), (41 U.S.C. Ill), (41 U.S.C. 112), (41 U.S.C. 113), (41 U.S.C. 
114), (41 U.S.C. 115), (41 U.S.C. 116), (41 U.S.C. 117), (41 U.S.C. 118), (41 
U.S.C. 119), (41 U.S.C. 120), (41 U.S.C. 121), (41 U.S.C. 122), (41 U.S.C. 
123), (41 U.S.C. 124), (41 U.S.C. 125), (42 U.S.C. 211b), (42 U.S.C. 1592), 
(50 U.S.C. 9(e) ), and (50 U.S.C. App. 1742). 



INTRODUCTION OF H.R. 3884, 94th CONGRESS 

[Congressional Record — v. 121, Feb. 27, 1975 — p. H1225] 
Providing for Orderly Implementation of Future Emergencies 

The Speaker pro tempore. Under a previous order of the House, the gentleman 
from New Jersey (Mr. Rodino) is recognized for 5 minutes. 

Mr. Rodino. Mr. Speaker, I have today introduced a bill providing for the 
termination of all powers and authorities relating to existing national emergen- 
cies and providing for the orderly implementation of future emergencies and for 
their continuation or termination. The bill is similar to the bill I introduced on 
the same subject in the 93d Congress and would meet the pressing need for statu- 
tory resolution and definition in this area of the law. 

The time is overdue for the termination of existing emergencies and for a clear 
Congressional mandate that our governmental operations be conducted under 
regular and orderly processes of law rather than under provisions which were 
intended to be effective for limited periods to meet specific emergency conditions. 
In some instances where there has been a long and accepted use of some of this 
emergency authority that experience would seem to indicate a need for per- 
manent legislation to deal with particular problems and situations. On the other 
hand, the actual need for such emergency authority may have disappeared with 
the emergency, and the appropriate committees of the Congress can consider 
legislation which can better serve our current needs and deal with the problems 
we face today. 

It is intended that consideration of this bill will be initiated in the near future 
by the Committee on the Judiciary. 

(179) 



TEXT OF H.R. 3884, 94th CONGRESS 

A BILL To terminate certain authorities with respect to national emergencies still in 
effect, and to provide for orderly implementation and termination of future national j 
emergencies 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That this Act may be cited as the "National 
Emergencies Act." 



TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES 






Sec. 101. (a) All powers and authorities possessed by the President, any 
other officer or employee of the Federal Government, or any Executive agency, as 
defined in section 105 of Title 5, United States Code, as a result of the existence 
of any declaration of national emergency in effect on the date of enactment of 
this Act are terminated one year from the date of such enactment. Such ter- 
mination shall not affect — 

(1) any action taken or proceeding pending not finally concluded or de- 
termined on such date ; 

(2) any action or proceeding based on any act committed prior to such 
date ; or 

(3) any rights or duties that matured or penalties that were incurred prior 
to such date. 

(b) For the purpose of this section, the words "any national emergency in 
effect" means a general declaration of emergency made by the President pur- 
suant to a statute authorizing him to declare a national emergency. 

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES 

Sec. 201. (a) In the event the President finds that a proclamation of a na- 
tonal emergency is essential to the preservation, protection and defense of 
the Constitution or to the common defense, safety, or well-being of the territory 
or people of the United States, the President is authorized to proclaim the 
existence of a national emergency. Such proclamation shall immediately be 
transmitted to the Congress and published in the Federal Register. 

(b) Any provisions of law conferring powers and authorities to be exercised 
during a national emergency shall be effective and remain in effect (1) only 
when the President (in accordance with subsection (a) of this section), specif- 
ically declares a national emergency, and (2) only in accordance witli this 
Act. No law enacted after the date of enactment of this Act shall supersede this 
title unless it does so in specific terms, referring to this title, and declaring that 
the new law supersedes the provisions of (his title. 

Sec. 202. (a) Any national emergency declared by the President in accord- 
ance with this title shall terminate if — 

(1) Congress terminates the emergency by concurrent resolution; or 

(2) the President issues a proclamation terminating the emergency. 
At the end of each year following the declaration of an emergency which is still 
in effect, the President shall publish in the Federal Register and transmit to 
the Congress a notice stating that the emergency is still in effect. Any national 
emergency declared by the President shall be terminated on the date specified 
in any concurrent resolution referred to in clause CI) of this subsection, and 
any powers or authorities exercised by reason of said emergency shall cease to be 
exercised after such specified date, except that such termination shall not affect — 

(A) any action taken or proceeding pending not finally concluded or deter- 
mined on such date ; 

(B) any action or proceeding based on any act committed prior to such 
date : or 

(C) any rights or duties that matured or penalties that were incurred 
prior to such date. 

(180) 



181 

i b ) Not later than six months after a national emergency is declared, and not 
later than the end of each six-month period thereafter that such emergency con- 
tinues, each House of Congress shall meet to consider a vote on a concurrent 
resolution to determine whether that emergency shall be terminated. 

(c) (1) A concurrent resolution to terminate a national emergency declared by 
the President shall be referred to the appropriate committee of the House of 
Representatives or the Senate, as the case may be. One such concurrent resolu- 
tion shall be reported out by such committee together with its recommendations 
within fifteen calendar days, unless .such House shall otherwise determine by 
the yeas and nays. 

(2) Any concurrent resolution so reported shall become the pending business 
of the House in question (in the case of the Senate the time for debate shall be 
equally divided between the proponents and the opponents) and shall be voted 
on within three calendar days thereafter, unless such House shall otherwise 
determine by yeas and nays. 

(3) Such a concurrent resolution passed by one House shall be referred to the 
appropriate committee of the other House and shall be reported out by such 
committee together with its recommendations within fifteen calendar days and 
shall thereupon become the pending business of such House and shall be voted 
upon within three calendar days, unless such House shall otherwise determine 
by yeas and nays. 

(4) In the case of any disagreement between the two Houses of Congress with 
respect to a concurrent resolution passed by both Houses, conferees shall be 
promptly appointed and the committee of conference shall make and file a report 
with respect to such concurrent resolution within six calendar days after the 
legislation is referred to the committee of conference. Notwithstanding any rule 
in either House concerning the printing of conference reports in the Record or 
concerning any delay in the consideration of such reports, such report shall be 
acted on by both Houses not later than six calendar days after the conference 
report is filed. In the event the conferees are unable to agree within forty-eight 
hours, they shall report back to their respective Houses in disagreement. 

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and 
section 602 (b) of this Act are enacted by Congress — 

(A) as an exercise of the rulemaking power of the Senate and the House 
of Representatives, respectively, and as such they are deemed a part of the 
rules of each House, respectively, but applicable only with respect to the 
procedure to be followed in the House in the case of resolutions described 
by this subsection ; and they supersede other rules only to the extent that 
they are inconsistent therewith ; and 

(B) with full recognition of the constitutional right of either House to 
change the rules (so far as relating to the procedure of that House) at any 
time, in the same manner, and to the same extent as in the case of any other 
rule of that House. 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec. 301. Whenever Congress declares war, any provisions of law conferring 
powers and authorities to be exercised during time of war shall be effective from 
the date of such declaration. 

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES 

Sec. 401. When the President declares a national emergency no powers or 
authorities made available by statute for use in the event of an emergency shall 
be exercised unless and until the President specifies the provisions of law under 
which he proposes that he, or other officers will act. Such specification may be 
made either in the declaration of a national emergency, or by one or more 
contemporaneous or subsequent Executive orders published in the Federal 
Register and transmitted to the Congress. 

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS OF 

THE PRESIDENT 

Sec. 501. (a) When the President declares a national emergency, or Congress 
declares war, the President shall be responsible for maintaining a file and index 
of all significant orders of the President, including Executive orders and 



182 

proclamations, and each such Executive agency shall maintain a file and index 
of all rules and regulations, issued during such emergency or war issued pur- 
suant to such declarations. 

(b) All such significant orders of the President, including Executive orders, 
and such rules and regulations shall be transmitted to the Congress promptly 
under means to assure confidentiality where appropriate. 

(c) When the President declares a national emergency or Congress declares 
war, the President shall transmit to Congress, within thirty days after the end 
of each three-month period after such declaration, a report on the total expendi- 
tures incurred by the United States Government during such three-month period 
which are directly attributable to the exercise of powers and authorities con- 
ferred by such declaration. Not later than thirty days after the termination of 
each such emergency or war, the President shall transmit a final report on all 
such expenditures. 

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY 
POWER AND OTHER STATUTES 

Sec. 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 
1481(a)) is amended — 

(1) at the end of paragraph (9), by striking out "; or" and inserting in 
lieu thereof a period ; and 

(2) by striking out paragraph (10). 

(b) Section 2667(b) of Title 10 of the United States Code is amended— 

(1) by inserting "and" at the end of paragraph (3) ; 

(2) by striking out paragraph (4) ; and 

(3) by redesignating paragraph (5) as (4). 

(c) The joint resolution entitled "Joint resolution to authorize the temporary 
continuation of regulation of consumer credit," approved August 8, 1947 (12 
U.S.C. 249), is repealed. 

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 
831d(m)) is repealed. 

(e) Section 1383 of Title 18, United States Code, is repealed. 

(f ) Section 6 of the Act entitled "An Act to amend the Public Health Service 
Act in regard to certain matters of personnel and administration, and for other 
purposes," approved February 28, 1948, is amended by striking out subsections 
(b), (c), (d), (e),and (f) (42 U.S.C. 211b). 

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742) 
is repealed. 

(h) This section shall not affect — 

(1) any action taken or proceeding pending not finally concluded or deter- 
mined at the time of repeal ; 

(2) any action or proceeding based on any act committed prior to repeal ; 
or 

(3) any rights or duties that matured or penalties that were incurred 
prior to repeal. 

Sec. 602. (a) The provisions of this Act shall not apply to the following provi- 
sions of law, the powers and authorities conferred thereby, and actions taken, 
thereunder : 

(1) Section 5 (b) of the Act of October 6, 1917, as amended (12 U.S.C. 
95(a) ; 50 U.S.C. App. 5(b) ) ; 

(2) Section 673 of Title 10, United States Code ; 

(3) Act of April 28, 1942 (40 U.S.C. 278b) ; 

(4) Act of June 30, 1949 (41 U.S.C. 252) ; 

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ; 

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15). 

(b) Each committee of the House of Representatives and the Senate having 
jurisdiction with respect to any provision of law referred to in subsection (a) 
(l)-(6) of this section shall make a complete study and investigation concern- 
ing that provision of law and make a report, including any recommendations and 
proposed revisions it may have, to its respective House of Congress within two 
hundred and seventy days after the date of enactment of this Act. 



183 



94th Congress ) HOUSE OF REPRESENTATIVES ( Keport 



f 



1st Session f ' 1 No. 94-238 



NATIONAL EMERGENCIES 



May 21, 1975. — Committed to the Committee "of the Whole House on the state of 
the Union and ordered to be printed. 



Mr. Flowers, from the Committee on the Judiciary, submitted the 

following 



l *-5 



REPORT 

[To accompany H.R. 3884] 

The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3884) to terminate certain authorities with respect to national 
emergencies still in effect, and to provide for orderly implementation 
and termination of future national emergencies, having considered the 
same, reports favorably thereon with amendments and recommends' 
that the bill as amended do pass. 

The amendments are as follows : 

Page 2, line 2 : Strike u one year" and insert "two years". 

Page 2, lines 13 and 14 : Strike "pursuant to a statute authorizing 
him to declare a national emergency". 

Page 3, line 21 : After "clause (1)", insert "or on the date specified 
in a proclamation by the President terminating the emergency as 
provided in clause (2) ". 

Page 6 : Strike all of lines 14, 15, 16, 17, 18, and 19. 

Page 6, line 20 : After "TITLE", strike "IV" and insert "III". 

Page 6, line 22 : After "SEC", strike "401" and insert "301". 

Page 7, line 6 : After "TITLE", strike "V" and insert "IV". 

Page 7, line 8 : After "SEC", strike "501" and insert "401". 

Page 7, line 12 : After "each", strike "such". 

Page 7, line 22 : After "within" strike "thirty" and insert "ninety", 
and after "each" strike "three-" and insert "six-". 

Page 7, line 25 : jStrike "three-month" and insert "six-month". 

Page 8, line 2 : Strike "thirty" and insert "ninety". 

Page 8, line 5 : After "TITLE", strike "VI" and insert "V". 

Page 8, line 8 : After "SEC", strike "601" and insert "501". 

Page 8, line 24 : After "Act of 1933" insert "as amended". 

Page 9, line 18 : After "SEC", strike "602" and insert "502". 

Page 9, line 22 : Strike "95 (a) " and insert "95a". 

Page 9 : Strike all of line 23. 



66-474 O - 76 - 13 



184 



Page 9. line 24 : Strike " (3) ,? and insert " (2) ". 
Page 9. line 25 : Strike " (4) " and insert " (3) » 
Page 10, line 1 : Strike " i 5 ) " and insert " (4) ". 
Page 10. line 3 : Strike "(6) " and insert ;; (5) ". 

Page 10. line 4: At the end of the sentence, strike the period and 
insert a semi-colon. 

Page 10, after line 4 : Insert : 

"(6) Public Law 85-804 (Act of Aug. 28, 1958, 72 Stat. 972: 
50 U.S.C. 1431-1435); 
"(7) Section 2304 (a)(1) of Title 10. United States Code: 
• B) Sections 3313, 6386(c) and S313 of Title 10, United States 
Code." 
Page 10. line 7: Strike "(1) (6) » 

Purpose 

The purpose of the proposed legislation, as amended, is to terminate 
all powers and authorities under any national emergency existing on 
the date of enactment as of two years from that date. 

As to future emergencies, the bill provides procedures and require- 
ments concerning their declaration and termination and provides for 
powers and authority to be exercised in the case o? future emergencies. 
It would also require that records be maintained of significant orders 
of the President and of agency rules and regulations issued during 
a war or national emergency, and that such orders and rules and regu- 
lations be transmitted to the Congress. A report of all expenditures 
directly attributable to the exercise of powers and authorities under 
a declaration of national emergency would have to be transmitted 
to the Congress within ninety days after each six month period under 
the declaration. 

The bill provides for the repeal of certain obsolete statutes and for 
the continuance in effect of emergency powers and authority under 
listed statutes which are important to present functions of the 
Government. 

Statement 

This is a bill which provides for a statutory resolution and defini- 
tion concerning the exercise of the powers and authorities in connec- 
tion with national emergencies which may occur in the future. By 
providing for a termination of powers and authorities relating to exist- 
ing emergencies, the bill will make it possible for our Government to 
function in accordance with regular and normal provisions of law 
rather than through special exceptions and procedures which were 
intended to be in effect for limited periods during specific emergency 
conditions. 

Presently, the national emergency declared in December of 1950 
by President Truman in connection with the Korean conflict is in 
effect. The even earlier emergency declared by President Roosevelt 
in March of 1033 to meet the pressing problems of the depression has 
not actually been terminated. Two other emergencies are still in 
effect. There was a national emergencv proclaimed on March 23. 1070 
because of a Post Office strike, and again on August 15, 1071. a 
national emergency was declared to deal with balance of payments 



185 



and other international problems. It can therefore be stated that there 
has been an emergency in one form or another for the last 43 years. 
This bill will have the positive effect of ending the practice of conduct- 
ing governmental activity under authority of laws which derive force 
from emergencies declared years in the past to meet problems and 
situations which have long since disappeared or are now drastically 
changed. The history of continued and almost routine utilization of 
such emergency authorities for years after the original crisis has 
passed in the opinion of this committee serves only to emphasize the 
fact that there is an urgent need to provide adequate laws to meet our 
present day needs. Legislation intended for use in crisis situations is 
by its nature not well suited to normal, day-to-day government opera- 
tions. It is also conceivable that the existence of emergency authority 
has actually discouraged legislative action. Routine statutory authori- 
zation may not have been sought by executive agencies or granted by 
the Congress because it was not then currently needed. One of the 
basic purposes of this bill is to provide a legislative basis for a return 
to a more rational and normal state of law in this phase of govern- 
ment operations and to eliminate unnecessary and undesirable emer- 
gency powers without, at the same time, upsetting dispositions that 
are routine and essential portions of our present legislative and admin- 
istrative structure. In providing procedures to govern future emer- 
gencies, the bill will establish a system which will prevent such a 
continuing reliance on emergency statutes from recurring. 

Prior to the consideration of legislation in the Senate, the Senate 
Special Committee on the Termination of the National Emergency 
conducted a two year study on the problems, application and scope of 
emergency statutes. An important aspect of that statute concerned the 
identification and analysis of emergency statutes. The bill S. 3957, 
which passed the Senate late in the last Congress, was to a large degree 
a product of the work of that special committee. The present bill H.R. 
3884 incorporates the basic provisions of the earlier bill S. 3956 as it 
was finally passed by the Senate and referred to this Committee in 
the 93rd Congress. As is evidenced by the departmental reports 
received by this Committee on the earlier bill which are printed in this 
report and commented upon in connection with the provisions of the 
bill, the present bill and the recommendations of the Committee are 
a continuation of the work begun in the last Congress. 

In the 98rd Congress, the bill H.R. 16668 on the subject of National 
Emergencies was introduced and referred to the Committee, and on 
October 7. 1974. as has been noted, a similar bill. S. 3957. passed the 
Senate and was also referred to this Committee shortly before the end 
of the Congress. "While it was not possible- to complete consideration 
of those measures in that Congress, the departmental reports received 
late in the year indicated general support for the bill as passed by the 
Senate. The reports contained additional material and background 
information which were considered bv the committee in connection 
with the current bill, H.R. 3884. As introduced. H.R. 3884, with two 
changes, was identical to the bill passed by the Senate last fall. In 
addition to a technical change suggested by the Office of Management 
and Budget in its report on the earlier bill, the language of the bill 
was changed to provide that the termination of the powers and author- 
ities relating to existing emergencies in section 101 of Title I of the 



186 



bill would affect those powers and authorities under emergencies in 
effect on the date of enactment rather than one year from date of enact- 
ment as in the earlier version. 

The report of the Committee received from the Department of De- 
fense recognized that world conditions and national conditions have 
changed since the state of national emergency was declared in 1950. 
That department stated that it recognized the desirability of terminat- 
ing existing states of emergency and further stated that it has no ob- 
jection to their termination. The Department of Defense referred to 
the fact that some of these emergency authorities had over the years 
come to be relied upon in the day-to-day operations of the Department 
and that these continuing needs would have to be met. The Commit- 
tee considered the effect of the bill on these functions and concluded 
that the two year period fixed in the amended bill would provide the 
Congress with a reasonable opportunity to consider permanent legisla- 
tion to replace the authority provided under the specific emergency 
provisions that now provide statutory authority for such day-to-day 
functions. This period for orderly transition should preclude any 
undue disruption in government operations. 

The report received from the Department of the Treasury on No- 
vember 12, 1974, was considered by the Committee with particular ref- 
erence to statutory authority for the regulations applicable during 
periods of financial crisis to banks which are members of the Federal 
Reserve System and the limitations and restrictions on the activities 
of such banks during those periods. That report stated the position of 
that department concerning the authority providing for regulation 
during emergencies of banking transactions, gold and silver activities, 
transactions in foreign exchange, and the exercise of rights in property 
subject to American jurisdiction in which foreign nationals have an 
interest. Some of these matters are of current significance, and there- 
fore, the bill as reported by the Committee contains the exception in 
section 502(a)(1) concerning section 5(b) of the Act of October 6, 
1917, the Trading With the Enemy Act. The Treasury Department also 
referred to certain provisions of law concerning current practices in 
the warehousing of merchandise in bonded warehouses. It noted that 
American importers have been permitted to warehouse merchandise 
in excess of the periods in excess of statutory periods fixed in sections 
491, 557, and 559 of the Tariff Act of 1930 as the result of regulations 
authorized in a Presidential Proclamation issued under the authority 
of an emergency statute, section 318 of the Tariff Act of 1930 (19 
U.S.C. 1318). The two year period fixed in the amended bill will make 
it possible for the appropriate committees to consider matters like this 
where authority originally provided in connection with an emergency 
situation has come to be relied upon in normal Government procedure 
and under current business practice. 

Title 1 of the bill provides that after two years, all powers and 
authorities possessed by the President or other officer or employee of 
the Federal Government, based upon any declaration of national 
emergency in effect on the date of enactment will be terminated. The 
provisions of Title 1 terminating powers and authorities possessed _ 
by the Executive as the result of any prior declaration of national emer- 
gency are a basic part of the bill. It is recognized that an immediate 
termination without a period for transition in adjustment would undo 



187 



and confuse many dispositions which are necessary and functioning 
parts of our Government, After study and consideration, the Congress 
may or may not wish to change some of these practices and procedures 
based upon the emergency statutes. The bill meets this problem in two 
ways : First, a limited number of powers and authorities which have 
been identified as necessary on a continuing basis are exempted from 
termination by section 502 of the amended bill. Second, as discussed 
above, the termination date for all other powers and authorities is set 
at two years from date of enactment. This will also serve to give Gov- 
ernment departments and agencies a period in which to identify and 
bring to the attention of the Congress provisions which in their esti- 
mation merit legislative consideration. 

In reports of the earlier bills and in testimony before the Committee, 
the Executive departments and agencies have indicated that they have 
identified all of their operations which are dependent upon emergency 
powers and authority for their continuing validity. In view of the num- 
ber and the complexity of the statutes involved, there is a possibility 
that several provisions may have been overlooked. The definite limit 
fixed in the bill will require that the agencies take prompt action to 
review their legislative authority and make prompt recommendations 
to the Congress for any needed action. After the two year period the 
Government agency should be freed from a dependence on emergencies 
authority and Government operation will proceed on the basis of pro- 
cedures under permanent law and under new enactments drafted to 
meet current needs and operations. 

Any emergency declared after the date of enactment of this legis- 
lation would not be terminated by Title I, but would instead be gov- 
erned bv the limiting scheme created by Title II. By definition. Title 
I would affect those statutes whose conferral of powers is expressly 
conditioned upon a Presidential declaration of national emergency. 
This is provided in section 101(b), which defines "any national emer- 
gency in effect" to mean only "a general declaration of emergencv made 
by the President." Accordingly, laws like the Defense Production Act 
of 1950, which do not require a Presidential declaration of emergency 
for their use, are not affected bv this title — even though they may be 
referred to in a general sense as "emergency" statutes. 

Title II of the bill concerns the declaration of future national emer- 
gencies. These provisions would require that in the future there shall 
be an improved definition and classification of the nature and effect 
of declarations of national emergencies. The provisions of this title of 
the bill, together with those of Titles III and IV of the amended bill, 
are included to insure that the Congress will exercise continuing and 
effective oversight in connection with any future emergencies. Section 
201 concerns Presidential proclamations of a national emergency and 
authorizes such proclamations upon a finding that it is essential to the 
preservation, protection and defense of the Constitution or to the com- 
mon defense, safety or well-being of the territory or people of the 
United States. This language of section 201 fa) is not intended to grant 
any additional authority to the President. Rather it indicates the gen- 
eral nature of the circumstances in which a declaration might be issued. 
The proclamation would be immediatelv transmitted to the Congress 
and published in the Federal Register. Subsection (b) limits the effec- 
tiveness of provisions of law to be exercised during a national emer- 



188 



6 



gency to periods when a President's declaration of national emer- 
gency is in effect and then only in accordance with the balance of the 
provisions of the bill. This latter provision has particular reference 
to the provisions of section 301 which requires that the President spe- 
cify the provisions of law he will utilize or under which other officers 
of the (jovernment will act. Subsection (b) also contains a provision 
stating that no subsequent enactment will supersede the title unless it 
does so in specific terms declaring that the new law supersedes the pro- 
visions of the title. 

Section 202(a) provides for the termination of national emergencies 
declared by the President in accordance with Title II of the bill. They 
would be terminated by concurrent resolution of the Congress or by a 
proclamation by the President. The subsection contains an additional 
requirement that at the end of each year following the declaration of 
an emergency which is still in effect, the President shall publish in 
the Federal Register and transmit to the Congress a notice stating 
that the emergency is still in effect. This title of the bill provides, for 
the first time, explicit provision for the President to make the declara- 
tion of national emergency which certain statutes require. While it 
might be asserted that the Chief Executive has inherent constitutional 
power to proclaim to the citizens his determination that there exists 
a national emergency. Under this bill such a general proclamation 
would not have the effect of /placing any new statutory powers in his 
hands. This clarifies an existing problem as to emergency statutes. At 
present this power can be implied with respect to some statutes — for 
example, those which state that certain laws are deemed to be in effect 
"during any * * * period of national emergency declared by the 
President," in so many words, may declare such an emergency; and 
some statutes dependent upon the existence of states of emergency do 
not specifically say who shall declare them. The Committee has con- 
cluded that the bill will clarify the law in this report. When the Act 
fully takes effect, emergency provisions will only be implemented 
by the President in accordance with the terms of Title II and Title III 
of the amended bill. It should also be noted that when enacted into 
law the provisions of the bill would not supersede existing provisions 
of law which authorize Congressional declarations of emergency; its 
focus is only on Presidential declarations. 

In providing for the termination of emergency powers as well as 
their commencement, the bill makes an important change in the law. 
The absence of such statutory requirements and procedures in the past 
has resulted in the failure to terminate emergency powers and this in 
turn has given rise to the present situation. Under present law, which 
does not contain explicit termination provisions, proposals for the use 
of emergency power often generate discussion as to whether existing 
emergencies have lapsed or grown stale due to (passage of time and 
change of circumstances. Section 202 of the present bill will eliminate 
all uncertainty on that point, since it sets forth the prescribed means 
of termination and also requires the continuing existence of a state of 
emergency to be formally recorded each year. 

As has been stated, the bill provides two methods for termination : a 
concurrent resolution by Congress, and a proclamation by the Presi- 
dent. The second has been the traditional method for formally ending 



189 



7. 



emergencies. Presidents have terminated a number of separate emer- 
gencies in the recent past. In 1952 President Truman terminated 
emergencies declared by President Roosevelt in 1939 and 1941. x Recent 
invocations of emergency power by the President have relied on two 
emergency declarations: Proclamation No. 2914 of December 16, 1950, 
and Proclamation No. 4074 of August 15, 1971. 2 

Subsections (b) and (c) of Section 202 provide for procedures 
which will govern the consideration of the Congress of a concurrent 
resolution which would terminate a national emergency. These provi- 
sions are very similar to those set forth in section 7 of Public Law 
93-148, the War Powers Act, of November 7, 1973. Subsection (b) 
provides that not later than six months after a national emergency is 
declared, and then after each following six-month period during the 
continuance of an emergency, each House of Congress shall meet to 
consider a vote on a concurrent resolution to determine whether that 
emergency shall be terminated. It is further provided that in either 
House a concurrent resolution to terminate a national emergency de- 
clared by the President shall be referred to the appropriate committee 
and a resolution is to be reported out by such committee together with 
its recommendations within fifteen calendar days, unless such House 
shall otherwise determine by the yeas and nays. Upon being reported, 
the concurrent resolution shall become the pending business of the 
House in question and shall be voted on within three calendar days, 
unless such House shall otherwise determine by yeas and nays. Upon 
passage by one House, the concurrent resolution is to be referred to 
the appropriate committee of the other House and it similarly would 
be required to be reported out in fifteen calendar days. It would be- 
come the pending business of that House and be voted upon within 
three calendar days unless otherwise determined by that House by vote 
of the yeas and nays. 

In the event of disagreement between the two Houses on the concur- 
rent resolution passed by both, the bill would require that conferees 
be promptly appointed and their report filed within six days and the 
House would be required to act within six calendar days thereafter. 
Should the conferees disagree within forty-eight hours they are to 
report back to their respective Houses in disagreement. These provi- 
sions of subsection 202(c) are stated to be an exercise of the rulemak- 
ing power of the House and Senate, and the constitutional power of 
either House to change its rules is specifically recognized in the bill. 

Section 301 of the amended bill contains the provision referred to 
above providing that powers and authorities made available by statute 
for use during national emergencies are effective after a declaration 
of national emergency only after the President specifies the specific 
provisions of such laws which will be utilized. Under existing law, such 
a declaration would have the effect of reviving many emergency 
provisions throughout the United States Code, whether or not they 
are relevant to the emergency at hand. In many cases, the provisions 
are not self-executing, so that their mere availability does not bring 
them into force without specific implementing directives. In other 
, how ,;, changes in law ai Somatically take effect during times 

1 Proclamation No. 2974. 

2 E.g., E.O. 11810 of September 30, 1974, Continuing the Regulation of Exports. 



190 



8 



of national emergency. 3 Section 301 of the amended bill would change 
this by establishing that no provision of law shall be triggered by a 
declaration of national emergency unless and until the President 
specifies that provision as one of those under which he or other officers 
will act. The specification may be made either in the declaration of 
national emergency or in subsequent Executive orders. This will enable 
the Executive to choose specific provisions needed to deal with the 
emergency at hand ; and it will put Congress and the public on notice 
as to precisely what laws are going to be invoked. 

Section 401 of the amended bill details the accountability and re- 
porting requirements applicable to the President in connection with 
national emergencies. All significant orders of the President shall be 
filed and an index maintained of that file. Further, each Executive 
agency is to maintain a file and an index of all rules and regulations 
issued during an emergency of war. These orders, rules, and regula- 
tions are to be transmitted to the Congress. Subsection (c) requires 
that the President transmit to the Congress within ninety days of the 
end of each six month period after declaration of a national emergency 
or declaration of war a report of the total expenditures of the Govern- 
ment attributable to the exercise of powers and authorities brought 
into force by the declaration. A final report of all such expenditures is 
required within ninety days of the termination of the war or the 
emergency. 

At the hearing on the bill, the Defense Department witness stated 
that the thirty day period provided in the bill as originally introduced 
might not be sufficient time to prepare a complete accounting of all 
expenditures directly attributable to an emergency declaration. The 
General Services Administration representative at those hearings sug- 
gested that it may be more informative as well as less onerous to re- 
quire a narrative description of how emergency powers have been 
used, rather than a list of figures. The committee concluded that the 
best practical solution would be to fix a ninety day period for such 
reports at the end of each six month period. It would be assumed that 
such reports would include explanations which would identify the 
nature, powers and authority for the expenditures identified in this 
manner. 

Title V of the Amended Bill 

Section 501 provides for the repeal of provisions of seven laws 
which have been found to be superseded or obsolete, and section 502 
for the continuation in effect of other provisions of law which have 
been determined to be important to Governmental operation. The texts 
of laws referred to in these two sections are set out in the appendixes I 
and II of this report, and appendixes contain other relevant portions 
jzi the statutes involved to give a more complete understanding of the 
scope and purpose of the laws involved. The texts of laws or portions 
of laws repealed or stricken as provided in section 501 are set out in 
Appendix I, and the texts of laws continued in force under section 
502 (a) of the amended bill are set out in Appendix II. 

3 Examples are found in 37 U.S.C. 202(e) having to do with pay of certain rear admirals, 
or in 37 U.S.C. 407(b) having to do with dislocation allowances for members of the uni- 
formed services. 



191 



Provisions To Be Repealed 



Subsection (a) of section 501 of the amended bill strikes paragraph 
(1) of section 349 (a) of the Immigration Act (8 U.S.C. 1481 (a) ) . Sec- 
tion 349 concerns loss of nationality by nationals of the United States, 
and subsection (a) (10) provides that nationality shall be lost by per- 
sons who depart from or remain outside the jurisdiction of the United 
States during a war or national emergency for the purpose of evading 
or avoiding training and service in the Armed Forces of the United 
States. The Supreme Court in the case of Kennedy v. Mendoza Mar- 
tinez, 372 U.S. 144 (1963) held section 349(a) (10) of the Immigra- 
tion and Nationality Act to be unconstitutional because it employed 
the sanction of deprivation of nationality as a punishment for the 
offense of leaving or remaining outside the country to evade military 
service without affording the procedural safeguards guaranteed by 
the Fifth and Sixth Amendments. In this connection, the Court 
pointed out that this punishment cannot be imposed without a criminal 
trial with all its incidents and procedural safeguards including indict- 
ment, notice confrontation, jury trial, assistance of counsel, and com- 
pulsory process for obtaining witnesses. Since the subparagraph has 
been held invalid, the bill provides that it be stricken from section 
319 (a) of the Immigration and Nationality Act. 

Subsection (b) of section 501 of the amended bill deletes Item 4 of 
section 2667(b) of Title 10. Item 4 provides that leases of non-excess 
property of a military department must contain a provision making 
the lease revocable by the section during a national emergency declared 
by the President. In the course of the hearings on the bill, the Commit- 
tee was advised that the deletion of this provision would give the de- 
partments concerned the option of either including or not including 
such a requirement in their leases. The change would, therefore, make 
it possible for the departments to determine whether the foreseeable 
needs of the department would require the inclusion of such a pro- 
vision. 

Subparagraph (c) of section 501 repeals a joint resolution approved 
August 8, 1947, concerned the regulation of consumer credit. This Act 
ended consumer credit control under a war time executive order as of 
November 1, 1947. The exception contained in the Act provided that 
the authority could be exercised during war or national emergency 
after the effective date of the act. The provisions of the act are obso- 
lete. Section 1904 of Title 12 presently empowers the President to 
authorize the Board of Governors of the Federal Reserve System to 
regulate extensions of credit. 

Subsection (d) of section 501 repeals section 5(m) of the Tennessee 
Valley Authority Act of 1933 (16 U.S.C, 831d(m). Subsection (m^ 
bars the sale of products except ferrophosphorus outside the United 
States and possessions except as to the United States Government for 
military use or to its allies in the case of war or until six months after 
the termination of the Korean emergency. The Committee has been 
advised that the provisions of this subsection have no present applica- 
tion. 

Subsection (e) of spction 501 of the amended bill repeals section 
1383 of Title 18 of the United States Code. This is a section which pro- 



192 



10 



vides criminal penalties for "W n °ev er > contrary to the restrictions 
applicable thereto, enters, remains in, leaves, or commits any act in 
any military area or military zone prescribed under the authority of 
an Executive Order of the President, by the Secretary of the Army . . ." 
when it appears that the individual knew of the restrictions or order 
and that his act was in violation thereof. This section was originally 
enacted as a wartime measure on March 21, 1942. In the case of 
Hirabayashi v. United States, 320 U.S. 81, 92 (1943), the Court held 
that the Act ratified and confirmed Executive Order No. 9066, 7 Fed. 
Reg. 1407, which was promulgated during time of war on, February 
14, 1942, for the declared purpose of persecuting the war by protecting 
national defense resources from sabotage and espionage. This was the 
Executive Order which formed the basis for the relocation and deten- 
tion of persons of Japanese ancestry in that period. This relationship 
to the evacuation was even more- directly discussed in the case of 
Ex Parte Mitsuge Endo 323 U.S. 283, 298 when it was pointed out that 
Congress had made the orders regarding the evacuation program sub- * 
ject to the civil penalties provided in the Act of March 21, 1942, the act 
upon which the codified provisions of section 1383 of Title 18 are based. 
Clearly, the Act was not intended to apply in normal peacetime situa- 
tions. Further, by the Act of September 25, 1971, Public Law 92-128 
repealed the provision of Title II of the Internal Security Act of 1950 
(50 U.S.C. 811-826) the "Emergency Detention Act." the report of 
the Committee which accompanied that legislation (H. Kept. 92-116, 
92nd Congress, 1st Session) stated : 

. . . the Committee is of the view that the Emergency 
Detention Act serves no useful purpose, but, on the contrary, 
only engenders fears and resentment on the part of many of 
our fellow citizens . . . 

The repeal of section 1383 of Title 18 is consistent with the previous 
action of the Congress with reference to the above law. Since the pro- 
visions of section 1383 of Titlejii have no current purpose, they are, 
as a practical matter, obsolete. 

Subsection (f) of section 501 strikes subsections (b), (c), (d), (e) 
and (f ) of section 6 of the Act of February 28, 1948. An amendment to 
the Public Health Service Act concerning promotion of commissioned 
officers of the Public Health Service. The committee has been advised 
that these provisions now are obsolete. 

Subsection (g) of section 601 repeals section 9 of the 1946 Merchant 
Ship Sales Act. 50 U.S.C. 1742. This section of the Sales Act concerns 
price adjustment for prior sales to citizens of the United States. The 
Committee has been advised that the section is now a nullity and no 
future proclamation of a national emergency could provide any au- 
thority under it. The letter from the Department of Commerce dated 
April 1, 1975, discussing this point is set out at the end of this report. 

Continuing Authority Provided for in the Bill 

As has been discussed in this report, a basic problem with emergency 
legislation derives from the fact that much which is authorized and 
much which has been done under it is really not of merely an "emer- 
gency" nature. Simply to abolish all emergency powers and disposi- 



193 



11 



tions on a specified date would not actually solve this problem but 
would ignore that in some instances this authority is vital to retain 
governmental functions. The Committee has been advised that the 
greatest part of the effort which the Executive and Legislative 
branches have devoted to this bill and earlier bills in the past several 
years has been directed toward identifying those powers and disposi- 
tions which should be preserved while the rest are abandoned. As is 
provided in section 502(b) , it is intended that within a short time those 
provisions of law can be converted from the "emergency" portions of 
the Code in which they now appear to standard, non-emergency sec- 
tions. Until that is achieved, however, the technical conditions which 
enable them to remain effective must be preserved. This is achieved in 
section 502 of the amended bill, by preserving the effect of previously 
issued declarations of national emergency only with respect to those 
specified provisions. The texts of laws referred to in section 502(a) are 
set forth in Appendix II of this report together with a brief explana- 
tion of the provisions involved. 

Section 502(a) of the amended bill provides that the provisions of 
the Act will not apply to provisions of law and related powers, au- 
thority, and actions thereunder which are listed in that section. Clause 
1^ of the subsection lists section 5(b) of the Act_of J3ct. 6, 1917^ the 
Trading With the Enemy Act. The provisions of 5(b) are presently 
set out in the United States Code as section 95a of Title 12 and section 
5(b) of Title 50. This section concerns the regulation of transactions 
in foreign exchange of gold and silver, property transfers in which 
any foreign country or national thereof has an interest and provides 
for the administration of such assets or property. At the hearings on 
the bill and in departmental reports made to the Committee, the im- 
portance of this section as a continuing measure was emphasized. The 
Treasury Department pointed out that this law is important to the 
United States with regard to existing controls which regulate trans- 
actions with several foreign countries and their nationals. It is also 
important to the continuing validity of certain blockings of assets of 
foreign countries which are presently in effect. The StateDepartment 
witness before the Committee indicated that the Department of State 
is concerned with the continuance of this section because it provides 
the basic legal authority for a number of programs of major foreign 
policy importance. 

Clause 2 of section 602(a) of the bill as originally introduced would 
have continued in effect the provisions of section 673 of Title 10, 
which concerns the call up of members of the Ready Reserve. Since 
this section by its express terms could be invoked by any future emer- 
gency or where otherwise authorized by law, there would be no require- 
ment of its continuance under the provisions of this section. Acco rd- 
ingly, the Committee has recommended that it be stricken and the 
number of the clauses in the bill be adjusted accordingly. The 'balance 
of the discussion will relate to the numbers of the clauses as are con- 
tained in the amended bill in renumbered section 502(a). 

Clause 2 of 502(a) of the amended bill continues in effect the pro- 
visions of the Act of April 28, 1942, which is contained in the United 
States Code as section 278(b) of Title 40. This Act provides for an 
exception to the existing provisions of law concerning maximum rental 
of leases in cases relating to vital leases during a war or national 



194 



12 



' emergency ._ At the hearings on the bill, the witness represen ting the 
General Services Administration that the continuing availability of 
the national emergency authority contained in this section has been 
found to be essential to the regular functioning of the Government and 
pointed out that this type of authority had proven to be of value where 
situations arose where the normal limitations on expenditures for 
rentals alterations and improvements had to be waived in the national 
interest. The Department further indicated that it would favor the 
enactment of permanent legislation granting similar alternative 
authority. 

Clause 3 continues in effect the provisions of the Act of June 30, 
1949 presently found in section 252 of Title 41 of the United States 
Code. This Act provides for authority to make purchases and to make 
contracts for property and services. Subsection (c) (1) contains an 
exception to a requirement of advertising such purchases or contracts 
where it is determined in the public interest during a period of na- 
tional emergency declared by the Pre siden t or by the Congress. The 
General Services Administration has advised the Committee that this 
emergency authority is presently relied upon for the award of contracts 
involving unilateral set asides for small business concerns. The Com- 
mittee was also advised that this authority is also relied upon for 
partial set asides of contracts intended for labor surplus areas. It has 
also been used to limit certain contracts of domestic end products in 
the interest of improving the United States balance of payments. 
Presently, there is no other negotiation authority available. If this 
authority were terminated, awards for these purposes would have to be 
discontinued. For these reasons, this section has been listed among 
those provisions of law to be given continuing effect. 

Clauses 4 and 5 of section 502(a) of the amended bill continue the 
authority contained in two sections of the revised statutes concerning 
the assignment of claims. Clause 4 lists section 3477 of the revised 
statutes which is set out in the Code as section 203 of Title 31. This 
section refers to the assignment of claims upon the United States and 
continues a provision that in time of war or national emergency, con- 
tracts may contain a provision that assignment of money due under a 
contract may not be subject to reduction or setoff for liability of the 
assignor as specified in the section. Clause 5 continues in effect the 
provisions of section 3737 of the revised statutes which is set out as 
Section 15 of Title 41 of the Code. This section also has to do with 
the assignment of claims and setoffs against the assignee and contains 
language similar to that found in the section referred to in Clause 4. 

During the hearings, the General Services Administration witness 
referred to these provisions and stated that they permit claims for 
money due or to become due a contractor with the Government to be 
assigned to a bank, trust company or other financial institution. This 
has proven to be important in the financing of Government contracts 
but its usefulness may be impaired if the assignments are deemed to 
be subject to reductions or set off by the Government. As has been 
noted, under emergency authority, it is possible to provide that such 
assignments will not be subject to such setoffs. The continuance of this 
authority will make it possible for the appropriate committees to con- 
sider whether similar authority should be provided or modified by new 
legislation. 



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13 



Clause 6 of section 502(a) of the amended bill continues the author- 
ity provided in Public Law 85-804 as enacted on August 28, 1958. (50 
U.S.C. 1431-1435.) This law permits departments or agencies exercis- 
ing functions in connection with the national defense to deal with 
unusual contract situations. This permits the correction of mistakes in 
contracts, the formalization of informal commitments by the Govern- 
ment, and the indemnification of contractors for unusually hazardous 
risks and other extraordinary contractual relief. At the hearings on the 
bill, it was pointed out that the Commission on Government Procure- 
ment recommended to the Congress in 1972 that the authority in 
Public Law 85-804 be made available under permanent and generally 
applicable law rather than being dependent upon the existence of a 
state of war or national emergencies. On page 9 of Vol. 4 of the Report 
of that Commission, the Commission summarized its recommendations 
in connection with this Public Law and indicated that it concluded 
that the authority should be extended to all executive agencies subject 
to the statutory controls now contained in the Act and to controls and 
criteria specified in the regulations established by the President. The 
report of the Commission in chapter 4 discussed in some detail the 
subject of equitable and special management powers under Public Law 
85-804. The continuance of the authority as provided in this section of 
the bill will permit the appropriate committees of Congress to consider 
this aspect of the recommendations of the Procurement Commission. 

Item 7 continues the authority provided in section 2304(a)(1) of 
Title 10 providing for an exception to the requirement for formal 
advertising in connection with certain contracts. This is identical 
language presently contained in the Armed Services Procurement Act 
to that contained in Clause 1 of subsection (c) of section 302 of the 
Act of June 30, 1949, which is also listed in this subsection of the bill 
in Clause 3. The testimony at the hearing was that this authority is 
important in that it is used to provide for contracts for small busi- 
nesses and to place contracts for labor surplus areas and disaster areas. 

Item 8 extends the emergency authority provided in sections 3313, 
038(5 (c) and 8313 of Title 10, which provide authority for the suspen- 
sion of provisions of law requiring mandatorv retirement or separation 
of officers. In reports to the Committee and testimony in connection 
with this bill, the Committee was advised that this authority makes it 
possible to suspend such requirements as they relate to some C>90 mem- 
bers of the Armed Forces missing in action in Southeast Asia. The 
emergency authority permits the Armed Services to retain them in the 
Armed Services until they are returned or are accounted for. 

Committee Vote 

On May 21, 1975, the Full Committee on the Judiciary approved the 
bill H.R. 3884 by voice vote. 

Cost 

(Rule XIII (7) (a) (1) of the House Rules) 

The bill does not provide for any specific new programs. As has been 
outlined in the report, after a transition period of two years it would 
terminate all powers and authorities under existing emergencies, and 
then also define procedures and restrictions which would apply in the 



196 



H 

=-©ve»t of 4fte declaration of future emergencies. Thus the bill contem- 
plates governmental operations under regular law except as is other- 
wise provided in the bill relating to emergency statutes. Under these 
circumstances it is not possible to predict what future cost impact the 
provisions of this bill would have on the Government. 

Conclusion 

The Committee has concluded that the facts developed in the hear- 
ings on the bill and as outlined in this report demonstrate the need for 
legislative action. The testimony by representatives of departments in 
connection with this subject, and the reports received from those de- 
partments have shown that there is general agreement that the time 
has come for positive and constructive legislative action in the manner 
provided for in this bill. It is recommended that the amended bill be 
considered favorably. 

Analysis of the Bill 

title i — termination of existing emergencies 

Sec. 101 terminates powers and authorities under existing emer- 
gencies. Tne subcommittee amendment provides a two year delay in 
effective date in lieu of the one year date originally stated in the bill. 
The Congress would have this period to enact permanent law where 
needed. The section defines "any national emergency in effect" as one 
declared by the President. The committee amendment would strike the 
words "pursuant to a statute authorizing him to declare a national 
emergency". Apparently, not all previous emergencies were declared 
pursuant to a specific statute. 

TITLE II — FUTURE NATIONAL EMERGENCIES 

Sec. 201 authorizes the President to proclaim a national emergency 
and requires the proclamation to be^ transmitted to the Congress and 
published in the Federal Register. Powers and authorities to be exer- 
cised under the emergency are to be effective only when the President 
declares such an emergency and only in accordance with the provisions 
of this bill. 

Sec. 202 provides for termination of such emergencies either by the 
Congress by concurrent resolution or by Presidential proclamation. 
This section spells out in some detail the procedures to be followed by 
the Congress to consider such concurrent resolutions. The resolutions 
would be considered at six month intervals. These procedures of the 
section are to be deemed a part of the rules of each House. 

TITLE in — DECLARATIONS OF WAR 

The single section 301 contained in this title of the bill as originally 
introduced would provide that when Congress declares war, provisions 
of law providing for the exercise of powers and authorities in time of 
war are to be^effective from the datejof that declaration. The subcom- 
mittee amendment is to strike Title III and renumber subsequent titles 



197 



15 

and sections. It was concluded that the language of the title was un- 
necessary. 

TITLE IV — EXERCISE OF EMERGENCY POWERS 

Title IV is re-numbered as Title III, and Sec. 401 becomes Sec. 301. 
This section provides that upon the declaration of the national emer- 
gency, the President will be required to specify which emergency 
statutes are to be utilized. 

TITLE V AMENDED TITLE (IV) ACCOUNTABILITY AND REPORTING 

Sec 501 (401) When the President declares a national emergency 
or the Congress declares war, the President shall maintain a file and 
index of all Presidential orders and each Executive agency shall main- 
tain a file of all rules and regulations issued during the emergency or 
war. These orders, rules and regulations are to be transmitted to the 
Congress. The section requires that after the declaration of a national 
emergency or declaration of war, the President shall transmit to the 
Congress 90 days after each six month period a report of total ex- 
penditures which are attributable to powers and authorities exercised 
under such declarations. A final report is required 90 days after the 
termination of the emergency or war. 

TITLE VI (TITLE V) REPEALS AND CONTINUATION OF STATUTES 

[repeals J' 

Sec. 601 (501) repeals the following statutes : 

1. Paragraph 10 of section 349(a) of the Immigration and Nation- 
ality Act providing for the expatriation of persons remaining outside 
the jurisdiction of the United States in time of war or national emer- 
gency to avoid service in the militarv. 

~ 2. Clause 4 of section 2667(b) of Title 10 of the United States Code 
requiring that leases of non-excess property of a military department 
must include a provision making the lease revocable during a national 
emergency. 

3. A joint resolution approved August 8, 1947, concerning the regu- 
lation of consumer credit which contains an exception that the author- 
ities concerning such regulation could be exercised during war or na- 
tional emergency. 

4. Subsection (m) of Section 5 of the Tennessee Valley Authority 
Act of 1933 which bars the sale of Tennessee Valley Authority products 
outside of the United States except to the Government for military use 
or its allies in case of war or until six months after the termination of 
the Korean emergency. 

5. Section 1383 of Title 18 providing criminal penalties for persons 
entering, remaining in, leaving or committing any act in a military 
area or military zone. 

6. Subsections (b). (c), (d). (e). and (f) of Section 6 of the Act of 
February 28, 1948, an amendment to the Public Health Service Act 
concerning the promotion of Public Health Service officers, now 
deemed obsolete. 



198 

. 16 

[continuation] 

Section 602 (502) provides that the provisions of the Act will not 
apply to listed provisions of law and related powers and authorities 
and actions thereunder, as follows : 

1. Section 5(b) of the Act of October 6, 1917, the Trading With the 
Enemy Act. The section concerns the regulation of transactions in for- 
eign exchange in gold and silver, property transfers in which any for- 
eign country or national thereof has an interest and provides for the 
liquidation of assets or property. 

2. The bill would have continued the effect of the j) revisions of sec- 
tion 673 of Title 10 concerning the call-up of the Ready Reserve. The 
subcommittee amendment is to strike this and to re-number the balance 
of the clauses in the subsection. 

3. (Clause 2) continues in effect the provisions of the Act of October 
28, 1942, making an exception to existing provisions of law fixing max- 
imum rental in leases deemed vital during a war or national emer- 
gency. 

4. (Clause 3) The provisions of the Act of June 30, 1949, providing 
authority to make purchases and make contracts for property and 
services with an exception for the requirement for advertising and 
provision for negotiated contracts where it is determined in the pub- 
lic interest during a period of national emergency declared by the 
President or by the Congress. This is the present authority for set- 
asides for small business and for contracts in labor surplus areas. It 
also has been utilized to limit certain contracts to domestic end prod- 
ucts to improve balance of payments. 

5. (Clause 4) The provisions of section 3477 of the Revised Statutes 
concerning the assignment of claims during war or national emer- 
gency. Contracts may contain a provision that assignments of claims 
will not be subject to set-off for assignor liability. This section is im- 
portant in obtaining bank financing. 

6. (Clause 5) The provisions of section 3737 of the Revised Statutes. 
This section also has to do with the assignment of claims and set-offs 
for assignor liability and contains language similar to that found in 
the foregoing section. 

(The subcommittee amendment adds three references.) 

6. New Clause 6 continues in effect the provisions of Public Law 
85-804 permitting departments or agencies exercising functions in 
connection with the national defense to deal with unusual contract 
situations subject to standard regulations. This includes correction of 
mistakes in contracts, formalization of informal commitments, indem- 
nification of contractors for unusually hazardous risks and other 
extraordinary relief. 

7. New Clause 7 would continue in effect the provisions of section 
2304(a) (1) of Title 10 which is a parallel provision to that referred 
to in this section in original clause 4. It is similarly used to provide for 
contracts for small business and to place contracts in labor surplus 
areas and disaster areas. 

8. New Clause 8 continues in effect the provisions of sections 3313, 
6386(c) and 8313 of Title 10, making exceptions to the mandatory 
separation or retirement of officers during an emergency. These sec- 
tions may have application to approximately 691 officers now listed as 
missing in action. 



199 



17 

Statement Under Clause 2(1) (3), and Clause 2(1) (4) of 
Rule XI of the Rules of the House of Representatives 

A. 

Oversight Statement 

This report embodies the findings and recommendations of the 
Subcommittee on Administrative Law and Governmental Relations 
pursuant to its oversight responsibility over national emergencies and 
procedures relating thereto under Rule VI (b) of the Rules of the 
Committee on the Judiciary, and the committee determined that 
legislation should be enacted as set forth in the amended bill. 

B. 

Budget Statement 

Clause 2(1) (3) (B) of Rule XI is not yet applicable because as is 
stated in the report of the Committee on the Budget (House Report No. 
04—25, 94th Cong., 1st Sess.) section 308(a) of the Congressional 
Budget Act of 1974 will not be implemented during the current session. 

C. 

Estimate of the Congressional Budget Office 

No estimate or comparison was received from the Director of the 
Congressional Budget Office as referred to in subdivision (C) of 
Clause 2(1) (3) of House Rule XL 

D. 

Oversight Findings and Recommendations of the Committee on 
Government Operations 

Xo findings or recommendations of the Committee on Government 
Operations were received as referred to in subdivision (D) of clause 
2(1) (3) of House Rule XL 

Inflationary Impact 

In compliance with clause 2(1) (4) of House Rule XI it is stated 
that this legislation will have no inflationary impact on prices and 
costs in the operation of the national economy. The bill provides for 
termination of Governmental dependence upon emergency statutes 
and for procedures to be followed in the event of future emergencies. 
It does not provide for any new programs. 

Text of Statute To Be Repealed 

In compliance with paragraph 1 of clause 3 of rule XIII of the 
Rules of the House of Representatives, the text of the statute which is 
proposed to be repealed by the bill is shown as follows : 

66-474 O - 76 - 14 



200 



18 



Paragraph (10) of section. 349(a) of the Immigration and Nation- 
ality Act (Act of June 27, 1952, ch. 477, 66 Stat. 163; 8 U.S.C. 1481 
(10)) * * * ;or 

(10) departing from or remaining outside of the jurisdiction of the 
United States in time of war or during a period declared by the 
President to be a period of national emergency for the purpose of 
evading or avoiding training and service in the military, air, or naval 
forces of the United States. For the purposes of this paragraph fail- 
ure to comply with any provision of any compulsory service laws of 
the United States shall raise the presumption that the departure from 
or absence from the United States was for the purpose of evading 
or avoiding training and service in the military, air, or naval forces 
of the United States. 

Paragraph (4) of section 2667 (b) of title 10, United States Code 
******* 

(4) mu9t be revocable by the Secretary during a national emergency 
declared by the President ; and 

* * ***** 

The Joint Resolution approved August 8, 1947 entitled "Joint Reso- 
lution to authorize the temporary continuation of regulation of con- 
sumer credit" (Act of Aug. 8, 1947, ch. 517, 61 Stat. 921 ; 12 U.S.C. 
249). 

JOINT RESOLUTION To authorize the temporary continuation of regulation 

of consumer credit 

Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled, That after November 1, 
1947, the Board of Governors of the Federal Reserve System shall not 
exercise consumer credit controls pursuant to Executive Order Num- 
bered 8843, and no such consumer credit controls shall be exercised 
after such date except during the time of war beginning after the date 
of enactment of this joint resolution or any national emergency de- 
clared by the President after the date of enactment of this joint 
resolution. 

Section 5(m) of the Tennessee Valley Authority Act of 1933, as 
amended (Act of May 18, 1933, ch. 32, § 5m, 48 Stat. 61, as amended; 
16 U.S.C. 831d(m)) 

(m) No products of the Corporation except ferrophosphorus shall 
be sold for use outside of the United States, its Territories and posses- 
sions, except to the United States Government for the use of its Army 
and Navy, or to its allies in case of war or, until six months after the 
termination of the national emergency proclaimed by the President 
on December 16, 1950, or until such earlier date or dates as the Congress 
by concurrent resolution or the President may provide but in no event 
after April 1, 1953, to nations associated with the United States in 
defense activities. 

Section 1383 of Title 18, United States Code. 

§ 1383. Restrictions in military areas and zones. 

Whoever, contrary to the restrictions applicable thereto, enters, 
remains in, leaves, or commits any act in any military area or military 
zone prescribed under the authority of an Executive order of the 



201 



19 



President, by the Secretary of the Army, or by any military com- 
mander designated by the Secretary of the Army, shall, if it appears 
that he knew or should have known of the existence and extent of the 
restrictions or order and that his act was in violation thereof, be fined 
not more than $5,000 or imprisoned not more than one year, or both. 
Subsections (b), (c), (d), (e), and (f) of Section 6 of the Act 
entitled "An Act to amend the Public Health Service Act in regard to 
certain matters of personnel and administraiton and for other pur- 
poses", (Act of February 28, 1948, ch. 83, 62 Stat. 45 ; 42 U.S.C. 211b) 
****** * 

(b) Except as provided in subsection (d) of this section, no promo- 
tion shall be made under section 210 of the Public Health Service Act, 
as amended by this Act, prior to July 1, 1948. Until that date officers 
of the Regular Corps may receive temporary promotions to higher 
grades with the pay and allowances thereof pursuant to section 210 

(a) (1) of the Public Health Service Act, in force prior to the enact- 
ment of this Act, notwithstanding the termination, prior to such date, 
of the war and of the national emergencies proclaimed by the Presi- 
dent. Any officer holding, on June 30, 1948, an appointment pursuant 
to such section to a higher temporary grade shall continue in such 
grade until such appointment is terminated, as the President may 
direct. 

(c) Effective as of the date enactment of this Act, each officer of 
the Regular Corps on such date, in addition to the credit he has under 
preexisting legislation for purposes of promotion, shall be credited 
with three years of service. 

(d) (1) Officers of the Regular Corps who have, or who on or before 
July 1, 1948, will have, the years of service prescribed in pargraph (2) 
of section 210(d) of the Public Health Service Act, as amended by 
this Act, for promotion to the senior assistant, full, or senior grade, 
shall be recommended to the President for such promotion, to be 
effective as of July 1, 1948, whether or not vacancies exist in such grade. 
Such promotions shall be made without examination, except that no 
promotions shall be made to the senior grade or any grade immediately 
below a restricted grade until the officer is found qualified for promo- 
tion pursuant to subsection (c) of section 210 of the Public Health 
Service Act, as amended by this Act. No promotion shall be made 
pursuant to this paragraph to any grade in any professional category 
if such grade has been made a restricted grade pursuant to subsection 

(b) of section 210 of the Public Health Service Act, as amended by 
this Act. For purposes of seniority, an officer promoted under this 
paragraph shall be credited with the years of service in the grade to 
which promoted equal to the excess of his years of service on the date 
of promotion over the years of service required for promotion to such 
grade under paragraph (2) of section 210(d) of the Public Health 
Service Act, as amended by this Act. 

(2) Officers in the junior assistant grade in the Regular Corps who 
have, or who on or before July 1, 1948, will have four or more vears of 
service in the junior assistant grade, shall be recommended to the 
President for promotion to the assistant grade, to be effective as of 
July 1, 1948, without examination and whether or not vacancies exist 
in such grade. For purposes of promotion and seniority in grade, an 



202 



20 

officer promoted under this paragraph shall be credited with the years 
of service- equal to the excess of his years of service on the date of 
promotion over four years. 

(e) For purposes of seniority, any officer of the Regular Corps of 
the Public Health Service on the date of enactment of this -Act shall be 
considered as having had service in the grade which he holds on such 
date equal to the excess of the service credited to him for promotion 
purposes over the length of service required under section 210(d) (2). 
as amended by this Act, for promotion to such grade. 

(f) Except as provided in subsection (d) of this section, the pro- 
visions of this section shall not, prior to July 1, 1948, affect the term 
or tenure of office (including any office held under temporary promo- 
tion) of any commissioned officer of the Service in office upon the date 
of the enactment of this Act. 

Section 9 of the Merchant Marine Sales Act of 1946 (Act of Mar. 
8, 1946, ch. 82, 60 Stat. 45; 50 App. U.S.C. 1741). 

ADJUSTMENT FOR PRIOR SALES TO CITIZENS 

Sec. 9. (a) A citizen of the United Stares who on the date of the 
enactment of this Act — 

(1) owns a vessel which he purchased from the Commission 
prior to such date, and which was delivered bv its builder after 
December 31, 1940; or 

(2) is party to a contract with the Commission to purchase 
from the Commission a vessel, which has not yet been delivered 
to him; or 

(3) owns a vessel on account of which a construction-differential 
subsidy was paid, or agreed to be paid, by the Commission under 
section 504 of the Merchant Marine Act, 1936, as amended, and 
which was delivered by its builder after December 31, 1940 : or 

(4) is party to a contract with a shipbuilder for the construction 
for him of a vessel, which has not yet been delivered to him, and 
on account of which a construction-differential subsidy was 
agreed, prior to such date, to be paid by the Commission under 
section 504 of the Merchant Marine Act, 1936, as amended : 

shall, except as hereinafter provided, be entitled to an adjustment in 
the price of such vessel under this section if he makes application 
therefor, in such form and manner as the Commission may prescribe, 
within sixty days after the date of publication of the applicable prewar 
domestic costs in the Federal Register under section 3(c) of this Act. 
Xo adjustment shall be made under this section in respect of any vessel 
the contract for the construction of which was made after September 
2. 1945. under the provisions of title V (including section 504) or title 
VII of the Merchant Marine Act, 1936, as amended. 

(b) Such adjustment shall be made, as hereinafter provided, by 
treating the vessel as if it were being sold to the applicant on the 
date of the enactment of this Act, and not before that time. The 
amount of such adjustment shall be determined as follows: 

(1) The Commission shall credit the applicant with the excess 
of the cash payments made upon the original purchase price of 
the vessel over 25 per centum of the statutory sales price of the 
vessel as of such date of 'enactment. If such payment was less 



203 



21 

than 25 per centum of the statutory sales price of the vessel, the 
applicant shall pay the difference to the Commission. 

(2) The applicant's indebtedness under any mortgage to the 
United States with respect to the vessel shall be adjusted. 

(3) The adjusted mortgage indebtedness shall be in an amount 
equal to the excess of the statutory sales price of the vessel as of the 
date of the enactment of this Act over the sum of the cash payment 
retained bv the United States under paragraph (1) plus the read- 
justed trade-in allowance (determined under paragraph (7)) with 
respect to any vessel exchanged by the applicant on the original 
purchase. The adjusted mortgage indebtedness shall be payable 
in equal annual installments thereafter during the remaining life 
of such mortgage with interest on the portion of the statutory sales 
price remaining unpaid at the rate of 3% per centum per annum. 

(4) The Commission shall credit the applicant with the excess, 
if any. of the sum of the cash payments made by the applicant 
upon the original purchase price of the vessel plus the readjusted 
trade-in allowance (determined under paragraph (7) ) over the 
statutory sales price of the vessel as of the date of the enactment 
of this Act to the extent not credited under paragraph (1). 

(5) The Commission shall also credit the applicant with an 
amount equal to interest at the rate of 3V 2 per centum per annum 
(for the period beginning with the date of the original delivery 
of the vessel to the applicant and ending with the date of the 
enactment of this Act) on the excess of the original purchase price 
of the vessel over the amount of any allowance allowed by the 
Commission on the exchange of any vessel on such purchase : the 
amount of such credit first being reduced by any interest on the 
original mortgage indebtedness accrued up to such date of enact- 
ment and unpaid. Interest so accrued and unpaid shall be canceled. 

(6) The applicant shall credit the Commission with all amounts 
paid by the United States to him as charter hire for use of the 
vessel (exclusive of service, if any. required under the terms of 
the charter) under any charter party made prior to the date of 
the enactment of this Act. and any charter hire for such use accrued 
up to such date of enactment and unpaid shall be canceled : and 
the Commission shall credit the applicant with the amount that 
would have been paid by the United States to the applicant as 
charter hire bare-boat use of vessels exchanged by the applicant 
on the original purchase (for the period beginning with date on 
which the vessels so exchanged were delivered to the Commission 
and ending with the date of the enactment of this Act) . 

(7) The allowance made to the applicant on any vessel 
exchanged by him on the original purchase shall be readjusted so as 
to limit such allowance to the amount provided for under section 8. 

(8) There shall be subtracted from the sum of the credits in 
favor of the Commission under the foregoing provisions of this 
subsection the amount of any overpayments of Federal taxes by 
the applicant resulting from the application of subsection (c)(1), 
and there shall be subtracted from the sum of the credits in favor 
of the applicant under the foregoing provisions of this subsection 
the amount of any deficiencies in Federal taxes of the applicant 
resulting from the application of subsection (c)(1). If, after 



204 



22 

making such subtractions, the sum of the credits in favor of the 
applicant exceeds the sum of the credits in favor of the Commis- 
sion, such excess shall be paid by the Commission to the applicant. 
If, after making such subtractions, the sum of the credits in favor 
of the Commission exceeds the sum of the credits in favor of the 
applicant, such excess shall be paid by the applicant to the Com- 
mission. Upon such payment by the Commission or the applicant, 
such overpayments shall be treated as having been refunded and 
such deficiencies as having been paid. 
For the purposes of this subsection, the purchase price of a vessel on 
account of which a construction-differential subsidy was paid or agreed 
to be paid under sect-ion 504 of the Merchant Marine Act, 1936, as 
amended, shall be the net cost of the vessel to the owner. 

(c) An adjustment shall be made under this section only if the appli- 
cant enters into an agreement with the Commission binding upon the 
citizen applicant and any affiliated interest to the effect that — 

(1) depreciation and amortization allowed or allowable with 
respect to the vessel up to the date of enactment of this Act for 
Federal tax purposes shall be treated as not having been allow- 
able; amounts credited to the Commission under subsection (b) 
(6) shall be treated for Federal tax purposes as not having been 
received or accrued as income ; amounts credited to the applicant 
under subsection (b) (5) and (6) shall be treated for Federal 
tax purposes as having been received and accrued as income in 
the taxable year in which falls the date of the enactment of this 
Act; 

(2) the liability of the United States for use (exclusive of serv- 
ice, if any, required under the terms of the charter) of the vessel 
on or after the date of the enactment of this Act under any charter 
party shall not exceed 15 per centum per annum of the statutory 
sales price of the vessel as of such date of enactment; and the 
liability of the United States under any such charter party for 
loss of the vessel shall be determined on the basis of the statutory 
sales price as of the date of the enactment of this Act, depreciated 
to the date of loss at the rate of 5 per centum per annum ; and 

(3) in the event the United States, prior to the termination of 
the existing national emergency declared by the President on 
May 27, 1941, uses such vessel pursuant to a taking, or pursuant 
to a bare-boat charter made, on or after the date of the enactment 
of this Act, the compensation to be paid to the purchaser, his 
receivers, and trustees, shall in no event be greater than 15 per 
centum per annum of the statutory sales price as of such date. 

(d) Section 506 of the Merchant Marine Act, 1936, as amended, 
shall not apply with respect to (1) any vessel which is eligible for 
an adjustment under this section, or (2) any vessel described in clause 
(1), (2), (3), or (4) of subsection (a) of this section, the contract for 
the construction of which is made after September 2, 1945, and prior 
to the date of enactment of this Act. 

Changes in Existing Law 

In compliance with paragraph 2 of clause 3 of rule XIII of the 
Rules of the House of Representatives, changes in existing law made 



205 



23 



by the bill are shown as follows (existing law proposed to be omitted 
is enclosed in black brackets, new matter is printed in italic, existing 
law in which no change is proposed is shown in roman) : 

Section 349(a) of the Immigration and Nationality Act (Act of 
June 27, 1952. ch. 477, 66 Stat. 163 ; 8 U.S.C. 1481. - 

******* 

Chapter 3 — Loss of Nationality 

LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN 

Sec. 349. (a) From and after the effective date of this Act a person 
who is a national of the United States whether by birth or naturaliza- 
tion, shall lose his nationality by — 

(1) obtaining naturalization in a foreign state upon his own 
application, upon an application filed in has behalf by a parent, 
guardian, or duly authorized agent, or through the naturalization 
of a parent having legal custody of such person : Provided, That 
nationality shall not be lost by any person under this section as 
the result of the naturalization of a parent or parents while such 
person is under the age of twenty-one years, or as the result of a 
naturalization obtained on behalf of a person under twenty-one 
years of age by a parent, guardian, or duly authorized agent, 
unless such person shall fail to enter the United States to establish 
a permanent residence prior to his twenty-fifth birthday : And 
provided further, That a person who shall have lost nationality 
prior to January 1, 1948, through the naturalization in a foreign 
state of a parent or parents, may, within one year from the 
effective date of this Act, apply for a visa and for admission to 
the United States as a nonquota immigrant under the provisions 
of section 101(a) (27) (E) ; or 

(2) taking an oath or making an affirmation or other formal 
declaration of allegiance to a foreign state or a political subdivi- 
sion thereof ; or 

(3) entering, or serving in, the armed forces of -a foreign state 
unless, prior to such entry or service, such entry or service is spe- 
cifically authorized in writing by the Secretary of State and the 
Secretary of Defense : Provided, That the entry into such service 
by a person prior to the attainment of his eighteenth birthday shall 
serve to expatriate such person only if there exists an option to 
secure a release from such service and such person fails to exercise 
such option at the attainment of his eighteenth birthday ; or 

(4) (A) accepting, serving in, or performing the duties of any 
office, post, or employment under the government of a foreign state 
or a political subdivision thereof, if he has or acquires the nation- 
ality of such foreign state; or (B) accepting, serving in, or per- 
forming the duties of any office, post, or employment under the 
government of a foreign state or a political subdivision thereof, 
for which office, post, Or employment an oath, affirmation, or declara- 
tion of allegiance is required ; or 

(5) voting in a political election in a foreign state or participating 
in an election or plebiscite to determine the sovereignty over foreign 
territory ; or 



206 



24 



(6) making a formal renunciation of nationality before a diplo- 
matic or consular officer of the United States in a foreign state, in 
such form as may be prescribed by the Secretary of State ; or 

(7) making in the United States a formal written renunciation of 
nationality in such form as may be prescribed by, and before such 
officer as may be designated by, the Attorney General, whenever 
the United States shall be in a state of war and the Attorney General 
shall approve such renunciation as not contrary to the interests of 
national defense ; or 

(8) deserting the military, air, or naval forces of the United 
States in time of war, if and when he is convicted thereof by court 
martial and as the result of such conviction is dismissed or dis- 
honorably discharged from the service of such military, air, or naval 
forces : Provided, That, notwithstanding loss of nationality or citizen- 
ship under the terms of this or previous laws by reason of desertion 
committed in time of war, restoration to active duty with such mili- 
tary, air, or naval forces in time of war or the reenlistment or induc- 
tion of such a person in time of war with permission of competent 
military, air, or naval authority shall be deemed to have the immediate 
effect of restoring such nationality or citizenship heretofore or here- 
after so lost ; or 

(9) committing any act of treason against, or attempting by force 
to overthrow, or bearing arms against, the United States, violating 
or conspiring to violate any of the provisions of section 2383 of Title 
18, or willfully perfofrhiTTg any act in violation of section 2385 of Title 
18, or violating section 2384 of Title 18 by engaging in a conspiracy 
to overthrow, put down, or to destroy by force the Government of the 
United States, or to levy war against them, if and when he is convicted 
thereof by a court martial or by a court of competent jurisdiction 
[;orJ 

[(10) departing from or remaining outside of the jurisdiction of 
the United States in time of war or during a period declared by the 
President to be a period of national emergency for the purpose of 
evading or avoiding training and service in the military, air, or naval 
forces of the United States. For the purposes of this paragraph failure 
to comply with any provision of any compulsory service laws of the 
United States shall raise the presumption that the departure from or 
absence from the United States was for the purpose of evading or 
avoiding training and service in the military, air, or naval forces of 
the United States.] 

Section 2667 (b) of Title 10, United States Code. 

§ 2667. Leases : non-excess property 

• * * * * * * 

(b) A lease under subsection (a) — * * * * 

(3) must permit the Secretary to revoke the lease at any time, unless 
he determines that the omission of such a provision will promote the 
national defense or be in the public interest ; and 

[(4) must be revocable by the Secretary during a national emergency 
declared by the President ; and] 

[(5)1(4) ma y provide, notwithstanding section 303b of Title 40 or 
any other provision of law, for the maintenance, protection, repair, or 
restoration, by the lessee, of the property leased, or of the entire unit 



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25 



or installation where a substantial part of it is leased, as part or all of 
the consideration for the lease. 

******* 
Section 6 of the Act entitled "An Act to amend the Public Health 
Service Act- in regard -to.ee rtain matters of personnel and administra- 
tion and for other purposes", (Act of Feb. 28, 1948 ch. 83, 62 Stat. 45 : 
42U.S.C.211b) 

Sec. 6. (a) Section 210 of such Act is amended to read : 
******* 

[(b) Except as provided in subsection (d) of this section, no promo- 
tion shall be made under section 210 of the Public Health Service Act, 
as amended by this Act, prior to July 1, 1948. Until that date officers 
of the Regular Corps may receive temporary promotions to higher 
grades with the pay and allowances thereof pursuant to section 210 

(a) (1) of the Public Health Service Act, in force prior to the enact- 
ment of this Act, notwithstanding the termination, prior to such date, 
of the war and of the national emergencies proclaimed by the Presi- 
dent. Any officer holding, on June 30, 1948, an appointment pursuant 
to such section to a higher temporary grade shall continue in such 
grade until such appointment is terminated, as the President may 
direct.] 

[(c) Effective as of the date o^ the enactment of this Act, each 
officer of the Regular Corps on such date, in addition to the credit he 
has under preexisting legislation for purposes of promotion, shall be 
credited with three years of service.] 

[(d) (1) Officers of the Regular Corps who have, or who on or before 
July 1. 1948, will have, the years of service prescribed in paragraph (2) 
of section 210(d) of the Public Health Service Act, as amended by 
this Act, for promotion to the senior assistant, full, or senior grade, 
shall be recommended to the President for such promotion, to be effec- 
tive as of July 1, 1948, whether or not vacancies exist in such srrade. 
Such promotions shall be made without examination, except that no 
promotions shall be made to the senior grade or any grade immediately 
below a restricted grade until the officer is found qualified for promo- 
tion pursuant to subsection (c) of section 210 of the Public Health 
Service Act, as amended by this Act. No promotion shall be made 
pursuant to this paragraph to any grade in any professional category 
if such grade has been made a restricted grade pursuant to subsection 

(b) of section 210 of the Public Health Service Act, as amended by 
this Act. For purposes of seniority, an officer promoted under this 
paragraph shall be credited with the years of service in the grade to 
which promoted equal to the excess of his years of service on the date 
of promotion over the vears of service required for promotion to such 
grade under paragraph (2) of section 210(d) of the Public Health 
Service Act, as amended by this Act. 

(2) Officers in the junior assistant grade in the Regular Corps who 
have, or who on or before July 1, 1948, will have four or more vears of 
service in the junior assistant grade, shall be recommended to the 
President for promotion to the assistant grade, to be effective as of 
July 1, 1948. without examination and whether or not vacancies esdst 
in such grade. For purposes of promotion and seniority in grade, an 
officer promoted under this paragraph shall be credited with the years 



208 



26 

of service equal to the excess of his years of service on the date of 
promotion over four years.] 

[(e) For purposes of seniority, any officer of the Regular Corps of 
the Public Health Service on the date of enactment of this Act shall be 
considered as having had service in the grade which he holds on such 
date equal to the excess of the service credited to him for promotion 
purposes over the length of service required under section 210(d) (2) , 
as amended by this Act, for promotion to such grade. J 

[(f) Except as provided in subsection (d) of this section, the pro- 
visions of this section shall not, prior to July 1, 1948, affect the term 
or tenure of office (including any office held under temporary promo- 
tion) of any commissioned officer of the Service in office upon the date 
of the enactment of this Act.] 

Comments of Executive Departments and Agencies 

Executive Office of the President, 

Office of Management and Budget, 

Washington, D.C., December 12, 197 4. 
Hon. Peter W. Rodino, Jr., 

Chairman, Committee on the Judiciary, House of Representatives, 
Washington, D.C. 

Dear Mr. Chairman : This is in reply to your letter of October IT, 
1974 to me requesting an expression of my views concerning S. 3957, 
entitled "To terminate certain authorities with respect to national 
emergencies still in effect, and to provide for orderly implementation 
and termination of future national emergencies." It also responds to 
a similar letter of September 27, 1974, concerning H.R. 16668 and H.R. 
16743, two related bills. 

S. 3957 was introduced in the Senate as a result of the studies con- 
ducted by the Senate Select Committee on National Emergencies and 
Delegated Emergency Powers. It was reported by the Chairman of the 
Senate Committee on Government Operations, without amendment 
and without hearings. 

Subsequently, representatives of this Office, the Department of Jus- 
tice, and other agencies of the Executive Branch worked with staff 
members of the Senate in the preparation of an amendment in the 
form of a substitute for S. 3957, as reported. That substitute, with one 
unacceptable provision, was passed by the Senate and is now before 
your Committee. 

Section 202(a) and (b) clearly contemplate that any of the national 
emergencies declared by the President will continue until terminated 
by him or by concurrent resolution of the Congress. This accurately 
reflects the approach agreed upon in discussions with the Senate staff, 
as described above. However, Section 202(c) injects, presumably as 
a technical error, the concej)t that a concurrent resolution could be 
considered to continue as well as terminate a national emergency. 
We strongly urge that this subsection be modified by deleting any 
reference to continuation of national emergencies by concurrent reso- 
lution. Such a change, along with any other necessary related tech- 
nical changes in the subsection, would provide the essential clarifica- 
tion required to make these provisions consistent with those agreed 



209 



27 

upon and reflected in Section 202(a) and (b). If modified in the fore- 
going manner, S. 3957 would be acceptable to the Administration. 
~ The provisions of H.R. 16668 and H.R. 16743 are quite similar to 
the provisions of S. 3957, as reported in the Senate. Many of the 
provisions of those bills are objectionable. Those provisions are identi- 
fied and discussed in the report which the General Counsel of the 
Department of the Treasury sent you on November 12, 1974. We asso- 
ciate ourselves with the views expressed in that report and recommend 
against the enactment of either H.R. 16668 or H.R. 16745, as intro- 
duced. 

Sincerely, 

Rot L. Ash, Director. 

The General Counsel of the Treasury, 

Washington, D.C., November 12, 197b. 
Hon. Peter W. Rodino, Jr., 
Chairman, Committee on the Judiciary, 
House of Representatives, 
Washington, D.C. 

Dear Mr. Chairman : Reference is made to vour requests for the 
views of this Department on H.R. 16668. H.R. 16743, and S. 3957, sim- 
ilar bills, "National Emergencies Act." 

H.R. 16668 would terminate all national emergencies in effect at the 
time of its enactment. H.R. 16743 and S. 3957 would both terminate all 
powers and authorities bestowed upon governmental bodies due to 
past national emergencies, although S. 3957 would exempt certain 
statutes from the application of its provisions. All three bills would 
establish procedures for Presidential declarations of future national 
emergencies. H.R. 16668 and H.R. 16743 would provide for the auto- 
matic termination of such emergencies after 180 days, absent Con- 
gressional action, while S. 3957 would require Congress to meet within 
six months after the declaration of such an emergencv to determine 
whether such emergency should be terminated by concurrent 
resolution. 

H.R. 16668, H.R. 16743, and S. 3957 are variations of the "National 
Emergencies Act" prepared by the Senate Special Committee on the 
Termination of the National Emergencv following hearings pertain- 
ing to the desirability of repealing existing national emergencies. No 
hearings have been held, however, on any version of the "National 
Emergencies Act." 

The provisions of both H.R. 16668 and H.R. 16743 are of serious 
concern to this Department. S. 3957, on the other hand, would pre- 
sent few problems. The major objections of the Department relate 
to those provisions in section 8 of H.R. 16668 and in section 601 of H.R. 
16743 which would repeal 12 "T.S.C. 95 and 12 U.S.C. 95a (section 
5(b) of the Trading with the Enemy Act). The Department opposed 
the repeal of these statutes in its report to the Senate Special Com- 
mittee on the Termination of the National Emergency and continues 
to be opposed. 

12 U.S.C. 95 relates to limitations and restrictions on the business 
of members of the Eederal Reserve System "during such emergency 
period as the President . . . may prescribe." The section was enacted 



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28 



March 9, 1933, and had specific reference to declaration of the ''bank 
holiday" proclaimed by the President on March 6, 1933. The statute, 
although passed to ratify the action of the President in closing the 
banks, is not obsolete. The language of the section invests the Execu- 
tive with the authority to regulate or suspend the activities of all 
banks that are members of the Federal Reserve System — which would 
include all national banks — during an emergency. The Department 
is of the opinion that the authority to so act in times of financial crisis 
is necessary. Thus, 12 U.S.C. 95 should be retained as an emergency 
statute, as would be allowed by S. 3957. 

12 U.S.C. 95a, which embodies section 5(d) of the Trading With 
the Enemy Act, provides for the regulation by the President during 
periods of war or national emergency of banking transactions, gold 
and silver activities, transactions in foreign exchange, and the exercise 
of rights in property subject to American jurisdiction in which foreign 
nationals have an interest. Section 5(b) of the Trading with the 
Enemy Act is also codified in 50 U.S.C. App. 5 (b) . Under the authority 
of section 5(b), regulations have been issued under which controls are 
maintained in implementation of existing policies with respect to 
North Korea, North Vietnam, and Cuba, and some $80 million of 
Chinese assets have been frozen in order to be available in the settle- 
ment of claims of American citizens for the expropriation of their 
property 7 in mainland China. 

The Department believes that section 5(b) of the Trading With 
the Enemy Act is not obsolete and not only should not be repealed, 
but should be excluded from the provisions of the bills as a whole, 
as is provided by S. 3957. Section 5(b) should be available to deal 
with financial emergencies which may arise in the future. 

Furthermore, inclusion of section 5(b) under section 2 of H.R. 16668 
and under section 101 of H.R. 16743 would seriously affect the nego- 
tiating position of the United States with regard to the existing con- 
trols, discussed previously, which regulate transactions with several 
foreign countries and their nationals and which freeze significant 
amounts of Chinese and Cuban assets to be held for an eventual settle- 
ment of the claims of United States citizens whose property in Com- 
munist China and Cuba has been seized without compensation. In this 
regard, it also appears that constitutional problems might arise with 
respect of the validity of continued blockings of assets of foreign coun- 
tries when all national emergencies or authorities thereunder have been 
terminated, as the bills contemplate. We believe that no definitive Con- 
gressional action should be effected with respect to section 5(b) 
through the vehicle of any of these bills. It is essential that before 
any action is taken the appropriate committees closely study its poten- 
tial impact on section 5(b) of the Trading With the Enemy Act. S. 
3957 would exempt section 5(b) from its provisions and would enable 
such a study to be made, thus satisfying our objections. 

There are several other problems with H.R.* 16668 and U.Tl. 16743 
which also seriously concern the Department. Section 2 of H.R. 16668 
would terminate all national emergencies in effect on the date of 
enactment, which we understand to be four in number. 270 days after 
ennctment, and section 101 of H.R. 16743 would terminate all powers 
and authorities possessed by the Executive branch due to such emer- 
gencies within the same period. This nine month period was intended 



211 



29 



to give the Committees of the Congress an opportunity to enact into 
permanent legislation those existing programs which the Congress de- 
cides should be preserved. S. 3957 provides for a one year period to 
be used for the same purpose. 

The Department feels that nine months, or even one year, is much 
too brief a time for the Congress to deal with the significant problems 
which might arise with respect to those statutes appropriately covered 
by the bills. For example, American importers have relied extensively 
on the practice of warehousing merchandise in Customs bonded ware- 
houses for periods in excess of the initial statutory periods afforded by 
sections 491, 557, and 559 of the Tariff Act of 1930. Such extensions 
have been made possible by Customs regulations authorized by Procla- 
mation 2948 which President Truman issued under the authority of 
section 318 on the Tariff Act of 1930 (19 U.S.C. 1318), an emergency 
statute. Due to the extensive reliance on these Customs regulations in 
the past, a statutory replacement for the existing authority conferred 
on this Department by Proclamation 2948 will be recommended. How- 
ever, given the nature of the legislative process and the multitude of 
other legislative programs of current importance, it is unlikely that 
the grace periods provided by these bills would be sufficiently long for 
the enactment of such legislation. Consequently, the Department rec- 
ommends that the grace periods in all three bills be substantially 
lengthened. 

Section 5 of H.R. 16668 and section 402 of H.R. 16743, dealing 
with future national emergencies, would provide that such emergen- 
cies are automatically terminated six months after declaration unless 
continued to a specified date by concurrent resolutions. Section 5 of 
H.R. 16668 would further provide that no concurrent resolution 
extending the termination date of a national emergency shall be valid 
if agreed to more than ten days before the original expiration date. 
The Department believes that these termination provisions are unde- 
sirable. Instead, it would be preferable to adopt the termination proce- 
dure of S. 3957, which provides that future emergencies proclaimed 
by the President to deal with the highly significant national and inter- 
national problems justifying such a declaration of national emergency 
should continue unless declared terminated by a concurrent resolu- 
tion of the Congress or by a Presidential proclamation. 

Section 6 of H.R. 16668 would nrovide for the recordation of 
rules and regulations promulgated during a national emergency by 
the Executive and for the transmission of such rules and reflations 
to the Congress at the end of such emergency. Section 501 of H.R. 1 6743 
would provide that orders as well as rules and regulations should be 
transmitted to the Congress as soon as practicable after issuance. 
Section 501 of S. 3957 would nrovide thnt only significant orders as 
^ell ns rules and regulations he transmitted to Congress promptly . 
The Department agrees with the principle of these sections; indeed, 
virtually all such documents of general applicability are in fact pub- 
lished in the Federal Register. However, as drafted, section 501 of 
^.T(. 16743 is so broad as to reouire every minute action taken under 
emergency powers to be reported in this fashion, including those 
with no policy significance whatsoever. This would impose an unwork- 
able burden without commensurate benefit on the Executive branch. 



212 



30 



In addition to the above, the Department would like to make the 
following technical comments : (1) It would appear that the word "if" 
should be deleted from the fifth line of section 403(a) of H.R. 16743 as 
superfluous. (2) Section 8 of H.R. 16668 and section 601 of H.R. 16743 
list as being repealed 50 U .S.C. 9 (e) , which does not seem to exist. (3) 
Although all three bills refer to "12 U.S.C. 95(a)," the correct cita- 
tion for the section is "12 U.S.C. 95a." (4) H.R. 16668 and H.R. 16743 
would repeal certain sections of the United States Code which have 
not been codified into statutory law and are merely prima facie evi- 
dence of such law. To the extent that the law in these fields should be 
repealed, it would be preferable for the language of the bills to refer 
to the basic statutes which are involved. 

As a result of the above, the Department has strong objections to 
H.R. 16668 and H.R. 16743 as drafted. S. 3957, however, would satis- 
factorily deal with all the aforementioned problems which this De- 
partment has with the other two bills. Consequently, the Department 
recommends favorable consideration of S. 3957 in lieu of action on 
H.R. 16668 or H.R. 16743. 

The Department has been advised by the Office of Management and 
Budget that there is no objection from the standpoint of the Adminis- 
tration's program to the submission of this report to the Committee. 
Sincerely yours, 

Richard R. Albrecht, 

General Counsel. 

General Counsel of the Department of Defense, 

Washington, D.C., December &£, 1974. 
Hon. Peter W. Rodino, Jr., 
Chairman* Committee o» the Jvdiciary, 
House of Representatives, 
Washington, D.C. 

Dear Mr. Chairman : This is in reply to your request for an ex- 
pression of the views of the Department of Defense on S. 3957, 93rd 
Congress, an Act "To terminate certain authorities with respect to 
national emergencies still in effect, and to provide for orderly imple- 
mentation and termination of future national emergencies." 

Although the Department of Defense participated in comprehen- 
sive studies of legislation relating to existing emergencies, no formal 
hearings were held in the Senate on S. 3957. and the Department of 
Defense did not have an opportunity to make known its views on the 
bill itself before action by the Senate. For this reason it is hoped that 
the comments expressed herein will be carefully considered by your 
Committee. In the event you plan to hold hearings and desire the 
appearance of a representative of this Department, 1 would be pleased 
to make one available. 

S. 3957 would terminate, one year after its enactment, any authority 
conferred on an Executive or other federal agency by law or Executive 
order as a 7-esult of the existence of a state of national emergency on 
the day before the termination date. The bill would authorize the 
President, upon certain findings, to proclaim the existence of a future 
national emergency but would require the proclamation to be trans- 
mitted to Congress and published in the Federal Register. Such a 
future national emergency would terminate upon a concurrent resolu- 



213 



31 



tion by Congress or by a proclamation of the President. Thus, a future 
national emergency could be terminated by either Congress or the 
President. 

As a prerequisite to the exercise of any powers or authorities made 
available by statute for use in the event of an emergency, the bill 
would require the President to specify the provisions of law under 
which he or other officials of the Government propose to act. 

Enumeration of such powers and authorities would be required to be 
transmitted to Congress and published in the Federal Register. Fur- 
ther, the President would be required to maintain a file and index 
of all significant presidential orders and proclamations and each fed- 
eral agency would be required to maintain a file or index of all rules 
and regulations issued during future national emergencies. Copies 
of all such presidential and federal agency issuances would be required 
to be transmitted to Congress promptly. 

World and national conditions have changed since President Tru- 
man officially proclaimed the state of national emergency in 1950 
incident to the commencement of hostilities in Korea. Many authori- 
ties which were used then for the first time were regarded as extra- 
ordinary. Since then, experience has demonstrated a need for these 
authorities in the regular conduct of the day-to-day operations of the 
Department of Defense. The desirability of terminating existing 
states of emergency is recognized and no objection to their termination 
is entertained by the Department of Defense. However, there are cer- 
tain continuing needs, outlined below, which are accommodated by 
the existing national emergency proclaimed by President Truman in 
1950 but which are not specifically provided for in S. 3957 as passed 
in the Senate. 

First, there are 981 members of the armed forces who are still miss- 
ing as a result of their participation in the recent hostilities in South- 
east Asia. Although the Department of Defense is making every effort 
to resolve the uncertain status of these men, several factors have ham- 
pered this effort so that it is not possible to predict the exact date by 
which their status will be finally determined. One of these factors is 
the decree of a Federal court in a case styled Mr-Donald- v. McLucas, 
U.S.D.C., S.D.N.Y., 73 Civ. 3190, which precludes the Secretaries of 
the military departments from changing the status of those now classi- 
fied as missing in action to killed in action until the primary next-of- 
kin are afforded an opportunity to attend a hearing with counsel to 
present whatever evidence they deem relevant and to examine service 
files. Petition for review of this decision is now pending before the 
U.S. Supreme Court. In the meantime only the emergency authority 
of 10 U.S. Code 3313, 6386(c) and 8313 authorizes the suspension of 
mandatory separation and retirement requirements which would other- 
wise be applicable to allow some of these members to remain in the 
armed forces until they return or are accounted for. 

Whether or not their situation is viewed as warranting continuation 
of a national emergency, it would be inequitable to force their sepa- 
ration or retirement while they are in a missing status. 

In the field of personnel administration, the emergency authority 
of 10 U.S.C. 3444 and 8444 has been used to grant relief, by way of 
temporary appointments, to officers in the chaplain, judge advocate 
and medical fields who, because of constructive service credit in their 



214 



32 



specialties, are considered for permanent promotion earlier than their 
line officer counterparts and whose separation for failure of promotion 
might become mandatory under conditions inconsistent with the needs 
of the armed forces or fairness to the officers. Legislation which would, 
among other things, provide a solution in permanent law for this 
problem has been introduced at the request of the Department of 
Defense in the House of Representatives (H.R. 12405 and H.R. 12505) 
and hearings have begun on both of the bills involved. However, the 
legislative changes which these bills would effect are so extensive that 
it would not be realistic to expect enactment in this Congress or early 
in the next. 

In addition to these problems which would result from allowing 
the emergency authority now provided by 10 U.S.C. 3444 and 8444 
to lapse, the President, as commander-in-chief of the armed forces, 
would have no authority to grant temporary appointments to truly 
exceptional officers of the Army or Air Force. For example, the Presi- 
dent used this authority to extend a temporary appointment to the 
next higher grade to the Air Force astronauts who successfully com- 
pleted suborbital or orbital flights. Continuation of this latitude is 
needed so that exceptional individual contributions can still be recog- 
nized through temporary appointments. 

Termination of emergency authority under 10 U.S.C. 3444 and 
8444 would also deny to the Army and Air Force the only authority 
available in some cases to appoint alien doctors as officers to meet 
increasingly critical shortages of military medical personnel. 

Termination of the 1950 national emergency would also terminate 
entitlement to disability retirement or separation benefits under 10 
U.S.C. 1201 and 1203 for members with less than 8 years of service 
whose disability, although incurred in line of duty while on active 
duty, was not the proximate result of the performance of active duty. 
Imposition of this limitation — which would affect only the junior 
officers and enlisted men — is particularly untimely when the armed 
forces are endeavoring to meet their manpower needs through volun- 
tary means. Continuation of the authority to retire or separate mili- 
tary personnel with less than 8 years of service who become unfit for 
further service by reason of a disability incurred while in line of duty, 
is needed as part of the military disability system. 

Termination of the national emergency would also terminate the 
authority of the Department of Defense (and certain other agencies) 
under Public Law 85-804 (50 U.S.C. 1431-1435) to correct mistakes in 
contracts, to formalize informal commitments, to indemnify contrac- 
tors against losses or claims resulting from unusually hazardous risks 
to which they might be exposed during the performance of a contract 
and for which insurance, even if available, would be prohibitively ex- 
pensive, and to grant other extraordinary contractual relief. The Com- 
mission on Government Procurement, established by Public Law 91- 
129, has recommended that the authorizations of P.L. 85-804 be made 
available generally rather than being dependent upon the existence of 
a state of war or national emergency. But, here also, enactment of the 
Commission's recommendation in the near future does not appear 
likely. 

S. 3957 would adversely affect defense contracting in another way, 
that is, in denying the emergency exception to the requirement for 



215 



33 

advertising procurements not otherwise authorized to be negotiated. 
Cf. 10 U.S.C. 2304(a) (1). This exception is now narrowly limited in its 
application by the pertinent Armed Services Procurement Regulation 
(32 CFR 3.201), but its application affects major social and economic 
policies — the policies to favor labor surplus and disaster areas ancT 
small business and to achieve a balance of payments favorable to the 
United States. 

Continuation of several emergency authorities governing personnel 
administration in the naval service is also needed. These authorities 
include 10 U.S.C. 5231(c), which suspends existing limitations on the 
number of admirals and vice admirals of the Navy. If this authority is 
not continued, the Navy would lose approximately one half of its 
three- and four-star admirals. Similarly. 10 U.S.C. 5232(b) suspends 
existing limitations on lieutenant generals of the Marine Corps. If this 
authority is not continued, the Marine Corps would lose five of the cur- 
rently authorized seven lieutenant generals. Section 5711(b) of Title 
10 authorizes the suspension of the statutory limit of 5% below-the- 
zone selections specified in section 5707(c). Continuation of the au- 
thority provided in 10 U.S.C. 5785(b) is needed to suspend time-in- 
grade Navy and Marine Corps requirements for promotion to all 
grades except lieutenant and lieutenant commander. The statute is 
also the authority for suspension of the mandatory line fraction for 
promotion of staff corps officers. Section 5787 of Title 10 provides for 
temporary promotions in the Navy. Failure to retain this authority 
would require approximately 650 limited duty officers in the grade of 
lieutenant commander to revert to the grade of lieutenant. Discon- 
tinuance of this authority would also require Senate confirmation of all 
promotions to lieutenant (junior grade). 

In view of the need for continuation of the authorities referred to 
above, the Department of Defense recommends that any legislation 
terminating emergency powers except the cited statutes from its effect 
to preserve the substantive provisions which are now needed but which 
would be lost by termination of the 1950 national emergency. 

In general, the Department of Defense is in accord with the S. 3957 
goal of repealing obsolete or unnecessary emergency laws. Therefore, 
subject to the foregoing reservations and recommendations, this De- 
partment does not object to enactment of S. 3957. 

The Office of Management and Budget advises that, from the stand- 
point of the Administration's program, there is no objection to the 
submission of this letter for the consideration of the Committee. 
Sincerely, 

Martin R. Hoffmann-. 

Department of State, 
Washington, B.C.. November 27. 19? '4. 
Hon. Peter W. Rodino, Jr., 
Chairmsm on the Judiciary, 
House of Representatives. 

Dear Mr. Chairman : I have been asked to reply to your letter of 
October 17 to the Secretary of State requesting views on S. 3957. a bill 
"To terminate certain authorities with respect to national emergencies 
still in effect, and to provide for orderly implementation and termina- 
tion of future national emergencies/' 

66-474 O - 76 - 15 



216 



34 






The Department of State has no objection to S. 3957 as passed by 
the Senate following amendments to the bill reported out of Senate 
Committee. 

The Office of Management and Budget advises that from the stand- 
point of the Administration's program there is no objection to the sub- 
mission of this report. 
Cordially, 

LlNWOOD HoLTON, 

Assistant Secretary, for Congressional Relations. 



United States of America, 
General Services Administration, 
Washington, B.C., November 12, 1974- 
Hon. Peter W. Rodino, Jr., 

Chairman, Committee on the Judiciary, House of Representatives, 
Washington, B.C. 

Dear Mr. Chairman : Your letter of October 2, 1974, requested the 
views of the General Services Administration on H.R. 16668 and H.R. 
16743, bills concerning the termination of national emergencies and 
certain authorities with respect thereto. 

We attach a copy of a letter dated March 11, 1974, to Hon. Sam J. 
Ervin, Jr., Chairman of the Senate Committee on Government Oper- 
ations, reviewing statutory authorities that would be affected by a 
termination of the current state of national emergency. Of particular 
concern to us are the authorities described under the heading "II. 
Statutes That Should be Designated as Essential to the Regular Func- 
tioning of the Government." 

We continue to support fully the views expressed in our letter to 
Senator Ervin. 

By letter dated October 17, 1974, you requested our views on S. 3957, 
a similar bill which, as passed by the Senate on October 7, 1974, in- 
cludes a section 602 stating that the provisions of the Act shall not 
apply to certain listed provisions of law and the powers and authori- 
ties conferred thereby. This section preserves the authorities which are 
of primary concern to GSA. Accordingly, we support the Senate- 
passed bill in principle, and we strongly urge that your Committee 
take similar action respecting any bill on the subject which it may 
report. 

We note with some concern, however, that section 202(c) (1) of S. 
3957, by referring to a concurrent resolution "to continue" a national 
emergency, could be interpreted to require Congressional approval in 
order for a national emergency to continue beyond six months. We 
believe that section 202 should be revised to permit the continuance 
of a national emergency beyond six months if the Congress has not 
approved a resolution discontinuing it. Otherwise, if the Congress 
failed to take action one way or the other under the existing provisions 
within six months, the status of the national emergency and the 
statutory authorities activated by it would be placed in doubt and could 
result in unnecessary, lengthy, and burdensome litigation. 



217 



35 



The Office of Management and Budget has advised that, from the 
standpoint of the Administration's program, there is no objection to 
the submission of this report to your Committee. 
Sincerely, 

Larry F. Roush, 
Acting Assistant Administrator. 
Enclosure. 

United States Department of Commerce, 
The Assistant Secretary for Maritime Affairs, 

Y\* ashington, D.C., April 1, 1975. 
Hon. Peter W. Rodino, 
Chairman, Committee on the Judiciary, 
House of Representatives, 
M 'ashing ton, D.C. 

Attention Mr. William P. Shattuck. 

Dear Mr. Chairman : This is in reply to your oral request for infor- 
mation with respect to section 9 of the Merchant Ship Sales Act of 
1946 (50 U.S.C. App. 1742) which would be repealed bv section 601(g) 
of H.R. 3884. 

The purpose of the Merchant Ship Sales Act of 1946 (50 U.S.C. 
App. 1735 et seq.) was to authorize the sale of several thousand mer- 
chant ships of various types which had been built by or for the account 
of the United States Government during the period January 1. 1941 
and September 2, 1945, to provide logistical support to the Armed 
Forces during World War II. It was a surplus property disposal 
statute. Sales were authorized under the statute both to citizens of the 
United States and to aliens. The statute provided a formula by which 
he fixed sales prices of each type of vessel was to be ascertained. The 
fixed prices at which each vessel was to be sold was 50 percent of the 
"prewar domestic cost" was designed as the amount, as determined by 
the United States Maritime Commission, for which a vessel of that 
type could have been constructed on or about January 1, 1941. The 
sales authority under the Act expired on January 15, 1951. 

Between January 1. 1941. and March 8, 1946 (the date of enactment 
of the Act), the United States Maritime Commission had sold, under 
other legislation, certain vessels built during the same period to citi- 
zens of the United States and had contracted to sell other vessels to 
such citizens the building of which was contracted for during this 
same period at prices considerably in excess of the prices at which the 
same vessels would be sold under the Act. These vessels that were sold 
prior to the date of enactment of the Act, nevertheless, would operate 
in competition with vessels sold under that statute. As a matter of fair- 
ness, and to equalize the competitive position of these vessels sold prior 
to the date of enactment of the Act with that of vessels sold under that 
statute, section 9 provided for an adjustment of the price of such ves- 
sels sold before is enactment so that the cost of such vessels to their 
owners would be the same as though the vessel had been purchased 
under the Merchant Ship Sales Act of 1946. 

To qualify for the adjustment, however, the owners of such vessels 
were required by section 9 to apply within 60 days after the date on 



218 



36 

which the United States Maritime Commission published in the Fed- 
eral Register the applicable "prewar domestic costs" under the Act. 
Such costs were published within a few months after the date of enact- 
ment of the statute. The time within which to apply for an adjustment 
has long since expired. All such applications have long ago been 
processed and there is no litigation outstanding with respect to any of 
them. 

One of the conditions that any applicant for an adjustment had to 
agree to was that if the United States requisitioned the use of his vessel 
during the national emergency declared by President Roosevelt on May 
27, 1941, the compensation to be paid for such use would not exceed 15 
percent per annum of the fixed price at which the vessel would have 
been sold under the Merchant Ship Sales Act of 1946. This emergency 
was terminated by the Act of July 25, 1947 (P.L. 239, 80th Congress"; 
61 Stat, 449). 

Section 9 of the Merchant Ship Sales Act of 1946 is now a nullity. 
It does not now provide authority to do anything and no future proc- 
lamation of a national emergency would provide any authority under 
it. Repeal of the section, therefore, is unrelated to the purpose of H.R. 
3884. 

Sincerely, 

Robert J. Blackwell, 
Assistant Secretary for Maritime Affairs, 



219 
APPENDIX 



Provisions of law deleted or repealed by section 601 (a) (renumbered 
by Committee amendment as section 501(a)) of the bill. 

^ 1. Paragraph 10 of section 349(a) of the Immigration and Nation- 
ality Act (8 U.S.C. 1481(a) ). 

Paragraph 10 provides for expatriation for persons remaining out- 
side the jurisdiction of the United States in time of war or national 
emergency to evade service in the military, Air or Naval Forces of the 
United States. Paragraph 10 is shown below in italics, with the other 
relevant portions of section 349, as set out as section 1481 of Title 8, 
United States Code : 

§ 1481. LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN [ 
VOLUNTARY ACTION ; BURDEN OF PROOF ; PRESUMPTIONS. 

(a) From and after the effective date of this chapter a person who is 
a national of the United States whether by birth or naturalization, 
shall lose his nationality by — 

******* 

(10) departing from or remaining outside of the jurisdiction of the 
United States in time of war or during a period declared by the Presi- 
dent to be a period of national emergency for the purpose of evading 
or avoiding training and service in the military, air, or naval forces 
of the United States. For the purposes of this paragraph failure to 
comply with any provision of any compulsory service laws of the 
United States shall raise the presumption that the departure from 
or absence from the United States teas for the purpose of evading or 
avoiding training and service in the military, air, or naval forces of 
the United States. 

-fb-) Any person who commits or performs any act specified in sub- 
section (a) of this section shall be conclusively presumed to have done 
so voluntarily and without having been subjected to duress of any 
kind, if such person at the time of the act was a national of the state 
in which the act was performed and had been physically present in 
such state for a period or periods totaling ten years or more immedi- 
ately prior to such act. 

(c) Whenever the loss of United States nationality is put in issue 
in any action or proceeding commenced on or after September 26, 1961, 
under, or by virtue of, the provisions of this chapter or any other Act, 
the burden shall be upon the person or party claiming that such loss 
occurred, to establish such claim by a preponderance of the evidence. 
Except as otherwise provided in subsection (b) of this section, any 
person who commits or performs, or who has committed or performed, 
any act of expatriation under the provisions of this chapter or any 

(37) 



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38 



other Act shall be presumed to have done so voluntarily, but such pre- 
sumption may be rebutted upon a showing, by a preponderance of the 
evidence, that the act or acts committed or performed were not done 
voluntarily. 

2. Subsection 601(b) of the bill deletes paragraph 4 of section 2667 
(b) of Title 10. 

Paragraph 4 provides that leases of non-excess property of a mili- 
tary department must contain a provision making the lease revocable 
by the Secretary during a national emergency declared by the Presi- 
dent. That paragraph shown in italics, together with relevant por- 
tions of section 2667 of Title 10, is as follows : 

§ 2667. Leases : non -excess property. 

(a) Whenever the Secretary of a military department considers it 
advantageous to the United States, he may lease to such lessee and 
upon such terms as he considers will promote the national defense or 
be in the public interest, real or personal property that is — 

( 1 ) under the control of that department ; 

( 2 ) not for the time needed for public use ; and 

(3) not excess property, as defined by section 472 of Title 40. 

(b) A lease under subsection (a) — 

(1) may not be for more than five years, unless the Secretary 
concerned determines that a lease for a longer period will pro- 
mote the national defense or be in the public interest ; 

(2) may give the lessee the first right to buy the property if the 
lease is revoked to allow the United States to sell the property un- 
under any other provision of law ; 

(3) must permit the Secretary to revoke the lease at any time, 
unless he determines that the omission of such a provision will 
promote the national defense or be in the public interest ; 

(4) must be revocable by the Secretary during a national emer- 
gency declared by the President; and 

(5) may provide, notwithstanding section 303b of Title 40 or any 
other provision of law, for the maintenance, protection, repair, or 
restoration, by the lessee, of the property leased, or of the entire 
unit or installation where a substantial part of it is leased, as part 
or all of the consideration for the lease. 

(c) This section does not apply to oil, mineral, or phosphate lands. 

(d) Money rentals received by the United States directly from a 
lease under this section shall be covered into the Treasury as miscel- 
laneous receipts. Payments for utilities or services furnished to the 
lessee under such a lease by the department concerned may be covered 
into the Treasury to the credit of the appropriation from which the 
cost of furnishing them was paid. 

(e) The interest of a lessee of property leased under this section 
may be taxed by State or local governments. A lease under this section 
shall provide that, if and to the extent that the leased property is 
later made taxable by State or local governments under an act of Con- 
gress, the lease shall be renegotiated. 

3. Subparagraph (c) of Section 601 repeals a joint resolution 
approved August 8, 1947 (12 U.S.C. 249) , concerning the regulation of 
consumer credit. This act ended consumer credit control under a 



221 



39 

war time Executive order as of November 1, 1947, with an exception 
that the authority could be exercised during war or national emergency 
after the effective date of the act. The act set out as Section 249 of 
Title 12, United States Code, is as follows : 

§ 249. Regulation of consumer credit. 

After November 1, 1947, the Board of Governors of the Federal 
Reserve System shall not exercise consumer credit controls pursuant 
to Executive Order Numbered 8843, and no such consumer credit 
controls shall be exercised after such date except during the time of 
war beginning after August 8, 1947, or any national emergency 
declared by the President after August 8, 1947. 

4. Subsection (d) of Section 601 repeals Section 5(m) of the Ten- 
nessee Valley Authority Act of 1933 ( 16 U.S.C. 831d (m) . 

Subsection (m) bars the sale of products except ferrophosphorus 
outside the United States and possessions except as to the United States 
Government for military use or to its allies in the case of war or until 
six months after termination of the Korean emergency, with further 
restrictions. That section as set out as subsection (m) of Section 83 Id 
of Title 16, United States Code, is as follows : 

§ 831d. Directors; maintenance and operation of plant for pro- 
duction, SALE, AND DISTRIBUTION OF FERTILIZER AND POWER. 

******* 

(m) No products of the Corporation except ferrophosphorus shall 
be sold for use outside of the United States, its Territories and pos- 
sessions, except to the United States Government for the use oi its 
Army and Navy, or to its allies in case of war or, until six months 
after the termination of the national emergency proclaimed by the 
President on December 16, 1950, or until such earlier date or dates as 
the Congress by concurrent resolution or the President may provide 
but in no event after April 1, 1953, to nations associated with the 
United Sates in defense activities. 

5. Subsection (e) of Section 601 repeals the provisions of Section 
1383 of Title 18 concerning restrictions on military areas and zones. 

This is a criminal statute providing penalties for persons entering, 
remaining in, leaving or commit ing any act in a military area or mili- 
tary zone. Section 1383 of Title 18, United States Code is as follows : 

§ 1383. Restrictions in military areas and zones. 

Whoever, contrary to the restrictions applicable thereto, enters, re- 
mains in, leaves, or commits any act in any military area or military 
zone prescribed under the authority of an Executive order of the Presi- 
dent, by the Secretary of the Army, or by any military commander 
designated by the Secretary of the Army, shall, if it appears that he 
knew or should have known of the existence and extent of the restric- 
tions or order and that his act was in violation thereof, be fined not 
more than $5,000 or imprisoned not more than one year, or both. 

6. Subsection (f) of Section 601 strikes subsections (b) (c) (d) (e) 
and (f ) of Section 6 of the Act of February 28, 1948, an amendment to 
the Publk T ^alth Service A i concerning the promotion of commis- 
sioned officers of the Public Pie. th Serv ; -e. (Feb. 28, 1948, ch. 83, 
§ 6 (b-f ) . 62 Stat. 45, 42 U.S.C. 211b) . 



222 



40 



The provisions repealed by the bill are obsolete. 

The subsections, set out as section 211b of Title 42 are as follows : 

§ 211b. Promotion of commissioned officers. 

(a) Temporary promotions prior to July i, 191+8. — Except as pro- 
vided in the third and fourth paragraphs of this section, no promotion 
shall be made under section 211 of this title, prior to July 1, 1948. Until 
that date officers of the Regular Corps may receive temporary promo- 
tions to higher grades with the pay and allowances thereof pursuant 
to section 211(a) (l)'of this title, in force prior to February 28, 1948, 
notwithstanding the termination, prior to such date, of the war and 
of the national emergencies proclaimed by the President. Any officer 
holding, on June 30, 1948, an appointment pursuant to such section 
to a higher temporary grade shall continue in such grade until such 
appointment is terminated, as the President may direct. 

(b) Service credit. — Effective as of February 28, 1948, each officer 
of the Regular Corps on such date, in addition to the credit he has 
under preexisting legislation for purposes of promotion, shall be 
credited with three years of service. 

(c) Promotion based on years of service; effective date; examina- 
tion; service credit. — Officers of the Regular Corps who have, or who 
on or before July 1, 1948, will have, the years of service prescribed in 
paragraph (2) of section 211(d) of this title, for promotion to the 
senior assistant, full, or senior grade, shall be recommended to the 
President for such promotion, to be effective as of July 1, 1948, whether 
or not vacancies exist in such grade. Such promotions shall be made 
without examination, except that no promotions shall be made to the 
senior grade or any grade immediately below a restricted grade until 
the officer is found qualified for promotion pursuant to subsection (c) 
of section 211 of this title. No promotion shall be made pursuant to this 
paragraph to any grade in any professional category if such grade has 
been made a restricted grade pursuant to subsection (b) of section 211 
of this title. For purposes ofi seniority, an officer promoted under this 
paragraph shall be credited with the years of service in the grade to 
which promoted equal to the excess of his years of service on the date 
of promotion over the years of service required for promotion to such 
grade under paragraph (2) of section 211(d) of this title. 

Officers in the junior assistant grade in the Regular Corps who have, 
or who on or before July 1, 1948, will have four or more years of service 
in the junior assistant grade, shall be recommended to the President 
for promotion to the assistant grade, to be effective as of July 1, 1948, 
without examination and whether or not vacancies exist in such grade. 
For purposes of promotion and seniority in grade, an officer promoted 
under this paragraph shall be credited with the years of service equal 
to the excess of his years of service on the date of promotion over four 
years. 

(d) Service for purpose of seniority. — For purposes of seniority, 
any officer of the Regular Corps of the Public Health Service on 
February 28, 1948, shall be considered as having had service in tlie 
grade which he holds on such date equal to the excess of the service 
credited to him for promotion purposes over the length of service 
required under section 211(d) (2) of this title, for promotion to such 
grade. 






223 



41 



(e) Term or tenure of office unaffected prior to July 1. 1948. — Except 
as provided in the third and fourth paragraphs of this section, the 
provisions of this section shall not, prior to July 1, 1948, affect the 
term or tenure of office (including any office held under temporary 
promotion) of any commissioned officer of the Service in office upon 
February 28, 1948. 

7. Subsection (g) of Section 601 repeals Section 9 of the 1946 Mer- 
chant Ship Sales Act (50 App. U.S.C. 1742) .This section of the 
sales act concerns price adjustment to prior sales to citizens. The Com- 
mittee has been advised that the section is now a nullity, and that it 
does not now provide authority to do anything and no future procla- 
mation of a national emergency would provide any authority under it. 
The provisions of that section as set out as Section 1742 of Title 50, 
United States Code, are as follows : 

§.1742. Price adjustment ox prior sales to citizens. 

(a) Form, manner, and time of application. — A citizen of the United 
States who on the date of the enactment of this Act [March 8, 1946] — 

(1) owns a vessel which he purchased from the Commission 
prior to such date, and which was delivered by its builder after 
December 31. 1940: or 

(2) is party to a contract with the Commission to purchase from 
the Commission a vessel, which has not yet been delivered to him ; 
or 

(3) owns a vessel on account of which a construction-differ- 
ential subsidy was paid, or agreed to be paid, by the Commission 
under section 504 of the Merchant Marine Act, 1936, as amended 
[section 1154 of Title 46], and which was delivered by its builder 
after December 31, 1940 ; or 

(4) is party to a contract with a shipbuilder for the construction 
for him of a vessel, which has not yet been delivered to him, and 
on account of which a construction-differential subsidy was agreed, 
prior to such date, to be paid by the Commission under section 
504 of the Merchant Marine Act, 1936, as amended [section 1154 
of Title 46], 

shall, except as hereinafter provided, be entitled to an adjustment in 
the price of such vessel under this section if he makes application 
therefor, in such form and manner as the Commission may prescribe, 
within sixty days after the date of publication of the applicable prewar 
domestic costs in the Federal Register under section 3(c) of this Act 
[section 1736(c) of this Appendix]. No adjustment shall be made 
under this section in respect of any vessel the contract for the con- 
struction of whioh was made after September 2, 1945, under the pro- 
visions of title V [subchapter V of chapter 27 of Title 46] (including 
section 504 [section 1154 of Title 46]) or title VII of the Merchant 
Marine Act, 1936, as amended [subchapter VII of chapter 27 of Title 
46]. 

(b) Determination of amount. — Such adjustment shall be made, as 
hereinafter provided, by treating the vessel as if it were being sold to 
the applicant on the date of the enactment of this Act [March 8, 1946], 
and not before that time. The amount of such adjustment shall be 
determined as follows : 



224 



42 

( 1 ) The Commission shall credit the applicant with the excess of 
the cash payments made upon the original purchase price of the 
vessel over 25 per centum of the statutory sales price of the vessel 
as of such date of enactment [March 8, 1946]. If such payment was 
less than 25 per centum of the statutory sales price of the vessel, 
the applicant shall pay the difference to the Commission. 

(2) The applicant's indebtedness under any mortgage to the 
United States with respect to the vessel shall be adjusted. 

(3) The adjusted mortgage indebtedness shall be in an amount 
equal to the excess of the statutory sales price of the vessel as of 
the date of the enactment of this Act [March 8, 1946] over the 
sum of the cash payment retained by the United~5tates under para- 
graph (1) plus the readjusted trade-in allowance (determined 
under paragraph (7) ) with respect to any vessel exchanged by the 
applicant on the original % purchase. The adjusted mortgage in- 
debtedness shall be payable in equal annual installments thereafter 
during the remaining life of such mortgage with interest on the 
portion of the statutory sales price remaining unpaid at the rate 
of 31/2 per centum per annum. 

(4) The Commission shall credit the applicant with the excess, 
if any, of the sum of the cash payments made by the applicant 
upon the original purchase price of the vessel plus the readjusted 
trade-in allowance (determined under paragraph (7) ) over the 
statutory sales price of the vessel as of the date of the enactment of 
this Act [March 8, 1946] to the extent not credited under para- 
graph (1). 

(5) The Commission shall also credit the applicant with an 
amount equal to interest at the rate of ZV 2 P er centum per annum 
(for the period beginning with the date of the original delivery 
of the vessel to the applicant and ending with the date of the 
enactment of this Act [March 8, 1946] ) on the excess of the orig- 
inal purchase price of the vessel over the amount of any allowance 
allowed by the Commission on the exchange of any vessel on such 
purchase; the amount of such credit first being reduced by any 
interest on the original mortgage indebtedness accrued up to such 
date of enactment and unpaid. Interest so accrued and unpaid 
shall be canceled. 

(6) The applicant shall credit the Commission with all amounts 
paid by the United States to him as charter hire for use of the 
vessel (exclusive of service, if any, required under the terms of 
the charter) under any charter party made prior to the date of 
the enactment of this Act [March 8, 1946] , and any charter hire for 
such use accrued up to such date of enactment and unpaid shall be 
canceled; and the Commission shall credit the applicant with 
the amount that would have been paid by the United States to the 
applicant as charter hire for bare-boat use of vessels exchanged 
by the applicant on the original purchase (for the period begin- 
ning with date on which the vessels so exchanged were delivered 
to the Commission and ending with the date of the enactment of 
this Act [March 8, 1946] ) . 

(7) The allowance made to the applicant on any vessel ex- 
changed by him on the original purchase shall be readjusted so 



225 



43 



as to limit such allowance to the amount provided for under 
section 8 [section 1741 of this Appendix]. 

(8) There shall be subtracted from the sum of the credits in 
favor of the Commission under the foregoing provisions of this 
subsection the amount of any overpayments of Federal taxes by 
the applicant resulting from the application of subsection (c) (1) 
of this section, and there shall be subtracted from the sum of the 
credits in favor of the applicant under the foregoing provisions 
of this subsection the amount of any deficiencies in Federal taxes 
of the applicant resulting from the application of subsection (c) 
(1) of this section. If. after making such subtractions, the sum of 
the credits in favor of the applicant exceeds the sum of the credits 
in favor of the Commission, such excess shall be paid by the Com- 
mission to the applicant. If, after making such subtractions, the 
sum of the credits in favor of the Commission exceeds the sum of 
the credits in favor of the applicant, such excess shall be paid by 
the applicant to the Commission. Upon such payment by the 
Commission or the applicant, such overpayments shall be treated 
as having been refunded and such deficiencies as having been paid. 
For the purposes of this subsection, the purchase price of a vessel on 
account of which a construction-differential subsidy was paid or agreed 
to be paid under section 504 of the Merchant Marine Act. 1936, as 
amended [section 1154 of Title 46], shall be the net cost of the vessel 
to the owner. 

(c) Conditions binding on applicant. — An adjustment shall be made 
under this section onlv if the applicant enters into an* agreement with 
the Commission binding upon the citizen applicant and any affiliated 
interest to the effect that — 

(1) depreciation and amortization allowed or allowable with 
respect to the vessel up to the date of the enactment of this Act 
[March 8, 1946] for Federal tax purposes shall be treated as not 
having been allowable : amounts credited to the Commission under 
subsection (b) (6) of this section shall be treated for Federal tax 
purposes as not having been received or accrued as income: 
amounts credited to the applicant under subsection (b) (5) and 
(6) of this section shall be treated for Federal tax purposes as 
having been received and accrued as income in the taxable year 
in which falls the date of the enactment of this Act (March 8, 
1946) ; 

(2) the liability of the United States for use (exclusively of 
service, if any, required under the terms of the charter) of the 
vessel on or after the date of the enactment of this Act [March 8, 
1946] under any charter partv shall not exceed 15 per centum per 
annum of the statutory sales price of the vessel as of such date of 
enactment [March 8. 1946] and the liability of the United States 
under any such charter party for loss of the vessel shall be deter- 
mined on the basis of the statutory sales price as of the date of the 
enactment of this Act [March 8, 1946], depreciated to the date of 
loss at the rate of 5 per centum per annum : Provided, That the 
provisions of this subsection (c) (2) [of this section] shall not 
apply to any such charter party executed on or after the date of 
enactment of this amendatory ^provision [August 6, 1956]; and 
the Secretary of Commerce is directed to modify any adjustment 



226 



44 

agreement to the extent necessary to conform to the provisions 
of this amendatory proviso ; and 

' (3) in the event the United States, prior to the termination of 
the existing national emergency declared by the President on 
May 27, 1941, uses such vessel pursuant to a taking, or pursuant 
to a bare-boat charter made, on or after the date of the enactment 
of this Act [March 8, 1946] , the compensation to be paid to the 
purchaser, his receivers, and trustees, shall in no event be greater 
than 15 per centum per annum of the statutory sales price as of 
such date, 
(d) Applicability of other law. — Section 506 of the Merchant Ma- 
rine Act, 1936, as amended [section 1156 of Title 46], shall not apply 
with respect to (1) any vessel which is eligible for an adjustment 
under this section, or (2) any vessel described in clause (1), (2), (3), 
or (4) of subsection (a) of this section, the contract for the construc- 
tion of which is made after September 2, 1945, and prior to the date 
of enactment of this Act [March 8, 1946]. 

II 

Section 602(a) of the bill H.K. 3884 (renumbered by Committee 
amendment as section 501(a) ) provides that the provisions of the Act 
will not apply to the listed provisions of law and related powers, 
authorities and actions thereunder. 

1. Clause 1 cites section 5(b) of the Act of October 6, 1917, The 
Trading With the Enemy Act, presently set out as 12 U.S.C. 95a and 
50U.S.C.A : pp.5(b). 

This section concerns the regulation of transactions in foreign ex- 
change of gold and silver, property transfers in which any foreign 
country or national thereof has an interest and provides for the 
administration of assets or property. This section as classified to Title 
12 as section 95a is as follows : 

§ 95a. Regulation of transactions in foreign exchange of gold 

AND SILVER ; PROPERTY TRANSFERS J VESTED INTERESTS, ENFORCE- 
MENT AND PENALTIES. 

(1) During the time of war or during any other period of national 
emergency declared by the President, the President may, through 
any agency that he may designate, or otherwise, and under such rules 
and regulations as he may prescribe, by means of instructions, licenses, 
or otherwise — 

(A) investigate, regulate, or prohibit any transactions in for- 
eign exchange, transfers of credit or pavments between, by, 
through, or to any banking institution, and the importing, export- 
ing, hoarding, melting, or earmarking of gold or silver coin or 
bullion, currency or securities, and 

(B) investigate, regulate, direct and compel, nullify, void, pre- 
vent or prohibit, any acquisition holding, withholding, use, trans- 
fer, withdrawal, transportation, importation or exportation of , or 
dealing in, or exercising any right, power, or privilege with 
respect to, or transactions involving, and property in which any 
foreign country or a national thereof has any interest, 



227 



45 



by any person, or with respect to any property, subject to the juris- 
diction of the United States; and any property or interest of any 
foreign country or national thereof shall vest, when, as, and upon the 
terms, directed by the President, in such agency or person as may be 
designated from time to time by the President, and upon such terms 
and conditions as the President may prescribe such interest or prop- 
erty shall be held, used, administered, liquidated, sold, or otherwise 
dealt with in the interest of and for the benefit of the United States, 
and such designated agency or person may perform any and all acts 
incident to the accomplishment or furtherance of these purposes: 
and the President shall, in the manner hereinabove provided, require 
any person to keep a full record of. and to furnish under oath, in the 
form of reports or otherwise, complete information relative to any act 
or transaction referred to in this section either before, during, or after 
the completion thereof, or relative to any interest in foreign property, 
or relative to any property in which any foreign country or any 
national thereof has or has had any interest, or as may be otherwise 
necessary to enforce the provisions of this section, and in any case in 
which a report could be required, the President may, in the manner 
hereinabove provided, require the production, or if necessary to the 
national security or defense, the seizure, of any books of account, 
records, contracts, letters, memoranda, or other papers, in the custody 
or control of such person; and the President may, in the manner 
hereinabove provided, take other and further measures not incon- 
sistent herewith for the enforcement of this section. 

(2) Any payment, conveyance, transfer, assignment, or delivery 
of property or interest therein, made to or for the account of the United 
States, or as otherwise directed, pursuant to this section or any rule, 
regulation, instruction, or direction issued hereunder shall to the 
extent thereof be a full acquittance and discharge for all purposes of 
the obligation of the person making the same; and no person shall 
be held liable in any court for or in respect to anything done or omitted 
in good faith in connection with the administration of, or in pursuance 
of and in reliance on. this section, or any rule, regulation, instruction, 
or direction issued hereunder. 

(3) As used in this section the term "United States'' means the 
United States and any place subject to the jurisdiction thereof: Pro- 
vided, however, That the foregoing shall not be construed as a limita- 
tion upon the power of the President, which is conferred, to prescribe 
from time to time, definitions, not inconsistent with the purposes of 
this section, for any or all of the terms used in this section. Whoever 
willfully violates any of the provisions of this section or of any license, 
order, rule or regulation issued thereunder, shall, upon conviction, be 
fined not more than $10,000, or, if a natural person, may be imprisoned 
for not more than ten years, or both ; and any officer, director, or agent 
of any corporation who knowingly participates in such violation may 
be punished by a like fine, imprisonment, or both. As used in this sec- 
tion the term "person" means an individual, partnership, association, 
or corporation. 

2. Clause 2 continues in effect the provisions of section 673 of Title 
10 concerning the call up of the Ready Reserve. The Committee amend- 
ment would delete this clause from the bill. 



228 

46 

§ 673. Ready Reserve. 

(a) In time of national emergency declared by the President after 
January 1, 1953, or when otherwise authorized by law, an authority 
designated by the Secretary concerned may, without the consent of 
the persons concerned, order any unit, and any member not assigned 
to a unit organized to serve as a unit, in the Ready Reserve under the 
jurisdiction of that Secretary to active duty (other than for training) 
for not more than 24 consecutive months. 

(b) To achieve fair treatment as between members in the Ready 
Reserve who are being considered for recall to duty without their con- 
sent, consideration shall be given to — 

(1) the length and nature of previous service, to assure such 
sharing of exposure to hazards as the national security and mili- 
tary requirements will reasonably allow ; 

( 2 ) family responsibilities ; and 

(3) employment necessary to maintain the national health, 
safety, or interest. 

The Secretary of Defense shall prescribe such policies and procedures 
as he considers necessary to carry out this subsection. He shall report on 
those policies and procedures at least once a year to the Committees on 
Armed Services of the Senate and the House of Representatives. 

(c) Not more than 1,000,000 members 'of the Ready Reserve may be 
on active duty (other than for training), without their consent, under 
this section at any one time. 

3. Clause 3 continues in effect the provisions of the Act of April 28, 
1942, set out as 40 U.S.C. 278b. This Act made an exception to the 
existing provisions of law concerning maximum rental of leases in 
cases relating to vital leases during a war or national emergency. The 
Act as set out in section 278b of Title 40, United States Code, is as 
follows : 

§278b. Same; exception of certain vital leases during war or 

EMERGENCY. 

The provisions of section 278a of this title shall not apply during 
war or a national emergency declared by Congress or by the President 
to such leases or renewals of existing leases of privately or publicly 
owned property as are certified by the Secretary of the Army or the 
Secretary of the Navy, or by such person or persons as he may desig- 
nate, as covering premises for military, naval, or civilian purposes 
necessary for the prosecution of the war or vital in the national 
emergency. 

4. Clause 4 continues in effect the provisions of the Act of June 30, 
1949, set out as 41 U.S.C. 252. (Act of June 30, 1949, ch. 288, Title II, 
§ 302, 63 Stat. 393, as amended). The Act provides authority to make 
purchases, and to make contracts for property and services, and in 
subsection (c) (1) contains an exception to a requirement of adver- 
tising such purchases or contracts where it is determined in the public 
interest during a period of national emergency declared by the Presi- 
dent or by the Congress. 

§ 252. Purchases and contracts for property. 

(a) Applicability of chapter; delegation of authority. — Executive 
agencies shall make purchases and contracts for property and services 



229 



47 



in accordance with the provisions of this chapter and implementing 
regulations of the Administrator; but this chapter does not apply— 

(1) to the Department of Defense, the Coast Guard, and the 
National Aeronautics and Space Administration; or 

(2) when this chapter is made inapplicable pursuant to section 
474 of Title 40 or any other law, but when this chapter is made 
inapplicable by any such provision of law, sections 5 and 8 of this 
title shall be applicable in the absence of authority conferred by 
statute to procure without advertising or without regard to said 
section 5 of this title. 

(b) Small business concerns; share of business; advance publicity 
on negotiated purchases and contracts for property. — It is the declared 
policy of the Congress that a fair proportion of the total purchases 
and contracts for property and services for the Government shall be 
placed with small business concerns. Whenever it is proposed to make 
a contract or purchase in excess of $10,000 by negotiation and without 
advertising, pursuant to the authority of paragraph (7) or (8) of sub- 
section (c) of this section, suitable advance publicity, as determined 
by the agency head with due regard to the type of property involved 
and other relevant considerations, shall be given for a period of at least 
fifteen days, wherever practicable, as determined by the agency head. 

(c) Negotiated purchases and contracts for property ; conditions. — 
All purchases and contracts for property and services shall be made 
by advertising, as provided in section 253 of this title, except that 
such purchases and contracts may be negotiated by the agency head 
without advertising if — 

(1) determined to be necessary in the public interest during 
the period of a national emergency declared by the President or 
by the Congress; 

(2) the public exigency will not admit of the delay incident 
to advertising; 

(3) the aggregate amount involved does not exceed $2,500; 

(4) for personal or professional services; 

(5) for any service to be rendered by any university . college, or 
other educational institutions; 

(6) the property or services are to be procured and used out- 
side the limits of the United States and its possessions; 

(7) for medicines or medical property ; 

(8) for property purchased for authorized resale; 

(9) for perishable or nonperishable subsistence supplies: 

(10) for property or services for which it is impracticable to 
secure competition: 

(11) the agency head determines that the purchase or contract 
is for experimental, developmental, or research work, or for the 
manufacture or furnishing of property for experimentation, de- 
velopment, research, or test; 

(12) for property or services as to which the agency head deter- 
mines that the character, ingredients, or components thereof are 
such that the purchase or contract should not be publicly 
disclosed : 

(13) for equipment which the agency head determines to be 
technical equipment, and as to which he determinas that the pro- 



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48 



curement thereof without advertising is necessary in special situa- 
tions or in particular localities in order to assure standardization 
of equipment and interchangeability of parts and that such stand- 
ardization and interchangeability is necessary in the public 
interest ; 

(14) for property or services as to which the agency head de- 
termines that bid prices after advertising therefor are not rea- 
sonable (either as to all or as to some part of the requirements) 
or have not been independently arrived at in open competition : 
Provided, That no negotiated purchase or contract may be entered 
into under this paragraph after the rejection of all or some of the 
bids received unless (A) notification of the intention to negotiate 
and reasonable opportunity to negotiate shall have been given by 
the agency head to each responsible bidder and (B) the negoti- 
ated price is the lowest negotiated price offered by any responsi- 
ble supplier ; or 

(15) otherwise authorized by law, except that section 254 of 
this title shall apply to purchases and contracts made without 
advertising under this paragraph. 

(d) Bids in violation of antitrust laws. — If in the opinion of the 
agency head bids received after advertising evidence any violation 
of the antitrust laws he shall refer such bids to the Attorney General 
for appropriate action. 

(e) Exceptions to section. — This section shall not be construed to 
(A) authorize the erection, repair, or furnishing of any public build- 
ing or public improvement, but such authorization shall be required 
in the same manner as heretofore, or (B) permit any contract for the 
construction or repair of buildings, roads, sidewalks, sewers, mains, 
or similar items to be negotiated without advertising as required by 
section 253 of this title, unless such contract is to be performed outside 
the continental United States or unless negotiation of such contract 
is authorized by the provisions of paragraphs (l)-(3), (10) -(12), or 
(14) of subsection (c) of this section. 

(f ) Carriage of cargo; specification of container size. — No contract 
for the carriage of Government property in other than Government- 
owned cargo containers shall require carriage of such property in 
cargo containers of any^ stated length, height, or^ width. 

5. Clause 5 continues in force the provisions of section 347T oFthe 
Revised Statutes, set out in the Code as section 203 of Title 31. This 
section concerns the assignment of claims upon the United States and 
contains a provision that in time of war or national emergency, con- 
tracts may contain a provision that assignments of money due under 
a contract may not be subject to reduction or set-off for liability of the 
assignor as specified in the section. 

§ 203. Assignments of claims ; set-off against assignee. 

All transfers and assignments made of any claim upon the United 
States, or of any part or share thereof, or interest therein, whether abso- 
lute or conditional, and whatever may be the consideration therefor, 
and all powers of attorney, orders, or other authorities for receiving 
payment of any such claim, or of any part or share thereof, except as 
hereinafter provided, shall be absolutely null and void, unless they 
are freely made and executed in the presence of at least two attesting 
witnesses, after the allowance of such a claim, the ascertainment of the 



231 



49 



amount due, and the issuing of a warrant for the payment thereof. 
Such transfers, assignments, and powers of attorney, must recite the 
warrant for payment, and must be acknowledged by the person making 
them, before an officer having authority to take acknowledgments of 
deeds, and shall be certified by the officer ; and it must appear by the 
certificate that the officer, at the time of the acknowledgment, read and 
fully explained the transfer, assignment, or warrant of attorney to the 
person acknowledging the same. The provisions of this section shall. 
not apply to payments for rent of post office quarters made by post- 
masters to duly authorized agents of the lessors. 

The provisions of the preceding paragraph shall not apply in any 
case in which the moneys due or to become due from the United States 
or from any agency or department thereof, under a contract providing 
for payments aggregating $1,000 or more, are assigned to a bank, trust 
company, or other financing institution, including any Federal lending 
agency: Provided, 

1. That in the case of any contract entered into prior to October 9, 
1940, no claim shall be assigned without the consent of the head of the 
department or agency concerned ; 

2. That in the case of any contract entered into after October 9. 1940, 
no claim shall be assigned if it arises under a contract which forbids 
such assignment; 

3. That unless otherwise expressly permitted by such contract any 
such assignment shall cover all amounts payable under such contract 
and not already paid, shall not be made to more than one party, and 
shall not be subject to further assignment, except that any such assign-^ 
ment may be made to one party as agent or trustee for two or more par-' 
ties participating in such financing ; 

4. That in the event of any such assignment, the assignee thereof 
shall file written notice of the assignment together with a true copy of 
the instrument of assignment with (a) the contracting officer or the 
head of his department or agency; (b) the surety or sureties upon the 
bond or bonds, if any, in connection with such contract; and (c) the 
disbursing officer, if any. designated in such contract to make payment. 

Notwithstanding any law to the contrary governing the validity of 
assignments, any assignment pursuant to this section, shall constitute 
a valid assignment for all purposes. 

In any case in which moneys due or to become due under any con- 
tract are or have been assigned pursuant to this section, no liability of 
any nature of the assignor to the United States or any department or 
agency thereof, whether arising from or independently of such con- 
tract, shall create or impose any liability on the part of the assignee to 
make restitution, refund, or repayment to the United States of any 
amount heretofore since July 1, 1950, or hereafter received under the 
assignment. 

Anv contract of the Department of Defense, the General Services 
Admmistration, the Atomic Energy Commission, or any other depart- 
ment or agency of the United States designated by the President, 
except any such contract under which full payment has been made, 
may, in time of war or national emergency proclaimed by the President 
(including the national emergency proclaimed December 16, 1950) or 
by Act or joint resolution of the Congress and until such war or na- 
tional emergency has been terminated in such manner, provide or be 



i-474 O - 76 - 16 



232 



50 

amended without consideration to provide that payments to be made 
to the assignee of any moneys due or to become due under such contract 
shall not be subject to reduction or set-off, and if such provision or 
one to the same general effect has been at any time heretofore or is 
hereafter included or inserted in any such contract, payments to be 
made thereafter to an assignee of any moneys due or to become due 
under such contract, whether during or after such war or emergency, 
shall not be subject to reduction or set-off for any liability of any nature 
of the assignor to the United States or any department or agency 
thereof which arises independently of such contract, or hereafter for 
any liability of the assignor on account of (1) renegotiation under 
any renegotiation statute or under any statutory renegotiation article 
in the contract, (2) fines, (3) penalties (which term does not include 
amounts which may be collected or withheld from the assignor in 
accordance with or for failure to comply with the terms of the con- 
tract), or (4) taxes, social security contributions, or the withholding 
or nonwithholding of taxes or social security contributions, whether 
arising from or independently of such contract. ' 

Except as herein otherwise provided, nothing in this section shall 
be deemed to affect or impair rights or obligations heretofore accrued. 

6. Clause 6 continues in effect the provisions of section 3737 of the 
Revised Statutes, also set out as section 15 of Title 41 of the United 
States Code. This section also has to do with the assignment of claims 
and set-off against the assignee, and contains language similar to that 
found in the section referred to in Clause 5. 

§ 15 Transfers of contracts ; assignments of claims ; set-off against 
assignee 

No contract or order, or any interest therein, shall be transferred 
by the party to whom such contract or order is given to any other party, 
and any such transfer shall cause the annulment of the contract or 
order transferred, so far as the United States are concerned. All rights 
of action, however, for any breach of such contract by the contracting 
parties, are reserved to the United States. 

The provisions of the preceding paragraph shall not apply in any 
case in which the moneys due or to become due from the United States 
or from any agency or department thereof, under a contract providing 
for payments aggregating $1,000 or more, are assigned to a bank, trust 
company, or other financial institution, including any Federal lending 
agency : Provided, 1. That in the case of any contract entered into prior 
to October 9, 1940, no claim shall be assigned without the consent of 
the head of the department or agency concerned ; 2. That in the case 
of any contract entered into after October 9, 1940, no claim shall be 
assigned if it arises under a contract which forbids such assignment ; 
3. That unless otherwise expressly permitted by such contract any 
such assignment shall cover all amounts payable under such contract 
and not already paid, shall not be made to more than one party, and 
shall not be subject to further assignment, except that any such 
assignment may be made to one party as agent or trustee for two or 
more parties participating in such financing ; 4. That in the event of 
any such assignment, the assignee thereof shall file written notice of 
the assignment together with a true copy of the instrument of assign- 
ment with (a) the contracting officer or the head of his department or 
agency; (b) the surety or sureties upon the bond or bonds, if any, in 



233 



51 



connection with such contract; and (c) the disbursing officer, if any, 
designated in such contract to make payment. 

Notwithstanding any law to the contrary governing the validity of 
assignments, any assignment pursuant to this section, shall constitute 
a valid assignment for all purposes. 

In any case in which moneys due or to become due under any con- 
tract are or have been assigned pursuant to this section, no liability of 
any nature of the assignor to the United States or any department or 
agency thereof, whether arising from or independently of such con- 
tract, shall create or impose any liability on the part of the assignee to 
make restitution, refund, or repayment to the United States of any 
amount heretofore since July 1, 1950, or hereafter received under the 
assignment. 

Any contract of the Department of Defense, the General Services 
Administration, the Atomic Energy Commission, or any other depart- 
ment or agency of the United States designated by the President, ex- 
cept any such contract under which full payment has been made, may, 
in time of war or national emergency proclaimed by the President (in- 
cluding the national emergency proclaimed December 16, 1950) or by 
Act or joint resolution of the Congress and until such war or national 
emergency has been terminated in such manner, provide or be 
amended without consideration to provide that payments to be made 
to the assignee of any moneys due or to become due under such contract 
shall not be subject to reduction or set-off, and if such provision or one 
to the same general effect has been at any time heretofore or is here- 
after included or inserted in any such contract, payments to be made 
thereafter to an assignee of any moneys due or to become due under 
such contract, whether during or after such war or emergency, shall 
not be subject to reduction or set-off for any liability of any nature of 
the assignor to the United States or any department or agency thereof 
which arises independently of such contract, or hereafter for any 
liability of the assignor on account of (1) renegotiation under any 
renegotiation statute or under anv statutory renegotiation article in 
the contract, (2) fines, (3) penalties (which term does not include 
amounts which may be collected or withheld from the assignor in 
accordance with or for failure to comply with the terms of the con- 
tract), or (4) taxes, social security contributions, or the withholding 
or non withholding of taxes or social security contributions, whether 
aising from or independently of such contract. 

Except as herein otherwise provided, nothing in this section, shall be 
deemed to affect or impair rights or obligations heretofore accrued. 

The Committee amendment would add the three following references 
to section 602(a) which would be renumbered as section 502(a), and 
they would be designated as clauses 6, 7, and 8. 

6. Public Law 85-804 (72 Stat. 972; 50 U.S.C. 1431-1435). The law 
permits departments or agencies exercising functions in connection 
with the national defense to deal with unusual contract situations. This 
includes correction of mistakes in contracts, formalization of informal 
commitments, indemnification of contractors for unusually hazardous 
risks, and other extraordinary contractual relief. In 1972, the Commis- 
sion on Government Procurement recommended that this authority be 
made permanent. The law is as follows : 



234 



52 

AX ACT To authorize the making, amendment, and modification of contracts to 
facilitate the national defense 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That the President 
may authorize any department or agency of the Government which 
exercises functions in connection with the national defense, acting in 
accordance with regulations prescribed by the President for the pro- 
tection of the Government, to enter into contracts or into amendments 
or modifications of contracts heretofore or hereafter made and to make 
advance payments thereon, without regard to other provisions of law 
relating to the making, performance, amendment, or modification of 
contracts, whenever he deems that such action would facilitate the 
national defense. The authority conferred by this section shall not 
be utilized to obligate the United States in an amount in excess of 
$50,000 without approval by an official at or above the level of an 
Assistant Secretary or his Deputy, or an assistant head or his deputy, 
of such department or agency, or by a Contract Adjustment Board 
established therein. 

Sec. 2. Nothing in this Act shall be construed to constitute authori- 
zation hereunder for — 

(a) the use of the cost-plus-a-percentage-of-cost system of con- 
tracting ; 

(b) any contract in violation of existing law relating to limita- 
tion of profits ; 

(c) the negotiation of purchases of or contracts for property or 
services required by law to be procured by formal advertising and 
competitive bidding; 

(d) the waiver of any bid, payment, performance, or other 
bond required by law; 

(e) the amendment of a contract negotiated under section 2304 
(a) (15), Title 10, United States Code, or under section 302(c) 
(13) of the Federal Property and Administrative Services Act 
of 1949, as amended (63 Stat. 377, 394), to increase the contract 
price to an amount higher than the lowest rejected bid of any 
responsible bidder ; or 

(f) the formalization of an informal commitment, unless it is 
found that at the time the commitment was made it was imprac- 
ticable to use normal procurement procedures. 

Sec. 3. (a) All actions under the authority of this Act shall be 
made a matter of public record under regulations prescribed by the 
President and when deemed 'by him not to be detrimental to the 
national security. 

(b) All contracts entered into, amended, or modified pursuant to 
authority contained in this Act shall include a clause to the effect that 
the Comptroller General of the United States or any of his duly 
authorized representatives shall, until the expiration of three years 
after final payment, have access to and the right to examine any 
directly pertinent books, documents, papers, and records of the con- 
tractor or any of his subcontractors engaged in the performance of 
and involving transactions related to such contracts or subcontracts. 

Sec. 4. (a) Every department and agency acting under authority 
of this Act shall, by March 15 of each year, report to Congress all 
such actions taken by that department or agency during the preceding 



235 



53 



calendar year. With respect to actions which involve actual or poten- 
tial cost to the United States in excess of $50,000, the report shall — 

( 1 ) name the contractor ; 

(2) state the actual cost or estimated potential cost involved; 

(3) describe the property or services involved; and 

(4) state further the circumstances justifying the action taken. 
With respect to (1), (2), (3), and (4) , above, and under regulations 

prescribed by the President, there may be omitted any information 
the disclosure of which would be detrimental to the national security. 

(b) The Clerk of the House and the Secretary of the Senate shall 
cause to be published in the Congressional Record all reports sub- 
mitted pursuant to this section. 

Sec. 5. This Act shall be effective only during a national emergency 
declared by Congress or the President and for six months after the 
termination thereof or until such earlier time as Congress, by concur- 
rent resolution, may designate. 

7. Section 2304(a)(1) of Title 10. U.S.C. Clause (1) of subsection 
(a) of section 2304 provides an exception to the requirement for formal 
advertising. (This is identical language to that in clause (1) of sub- 
section (c) of section 302 of the Act of June 30, 1949, referred to in 
section 602(a) (4) of H.R. 3884.) The testimony at the hearing was 
that this authority is used to provide for contracts for small business, 
and to place contracts in labor surplus areas and disaster areas. The 
full section 2304 is as follows with clause (1) shown in italics: 

§ 2304. Purchases and contracts : formal advertising ; exceptions. 
(a) Purchases of and contracts for property or services covered by 
this chapter shall be made by formal advertising in all cases in which 
the use of such method is feasible and practicable under the existing 
conditions and circumstances. If use of such method is not feasible 
and practicable, the head of an agency, subject to the requirements 
for determinations and findings in section 2310, may negotiate such 
a purchase or contract, if — 

{1) it is determined that such action is necessary in the public 
interest during a national emergency declared by Congress or the 
President; 

(2) the public exigency will not permit the delay incident to 
advertising ; 

(3) the aggregate amount involved is not more than $2,500; 

(4) the purchase or contract is for personal or professional 
services; 

(5) the purchase or contract is for any service by a university, 
college, or other educational institution ; 

(6) the purchase or contract is for property or services to be 
procured and used outside the United States and the Territories, 
Commonwealths, and possessions ; 

(7 ) the purchase or contract is for medicine or medical supplies ; 

(8) the purchase or contract is for property for authorized 
resale; 

(9) the purchase or contract is for perishable or nonperishable 
subsistence supplies; 

(10) the purchase or contract is for property or services for 
which it is impracticable to obtain competition ; 



236 



54 






(11) the purchase or contract is for property or services that 
he determines to be for experimental, developmental, or research 
work, or for making or furnishing property for experiment, test, 
development, or research ; 

(12) the purchase or contract is for property or services whose 
procurement he determines should not be publicly disclosed because 
of their character, ingredients, or components ; 

(13) the purchase or contract is for equipment that he deter- 
mines to be technical equipment whose standardization and the 
interchangeability of whose parts are necessary in the public 
interest and whose procurement by negotiation is necessary to 
assure that standardization and interchangeability ; 

(14) the purchase or contract is for technical or special prop- 
erty that he determines to require a substantial initial investment 
or an extended period of preparation for manufacture, and for 
which he determines that formal advertising would be likely to 
result in additional cost to the Government by reason of duplica- 
tion of investment or would result in duplication of necessary 
preparation which would unduly delay the procurement of the 
property ; 

(15) the purchase or contract is for property or services for 
which he determines that the bid prices received after formal 
advertising are unreasonable as to all or part of the requirements, 
or were not independently reached in open competition, and for 
which (A) he has notified each responsible bidder of intention 
to negotiate and given him reasonable opportunity to negotiate ; 
(B) the negotiated price is lower than the lowest rejected bid of 
any responsible bidder, as determined by the head of the agency ; 
and (C) the negotiated price is the lowest negotiated price offered 
by any responsible supplier ; 

(16) he determines that (A) it is in the interest of national de- 
fense to have a plant, mine, or other facility, or a producer, manu- 
facturer, or other supplier, available for furnishing property or 
services in case of a national emergency; or (B) the interest of 
industrial mobilization in case of such an emergency, or the in- 
terest of national defense in maintaining active engineering, re- 
search, and development, would otherwise be subserved ; or 
research, and development, would otherwise be subserved ; or 

(17) negotiation of the purchase or contract is otherwise au- 
thorized by law. 

(b) The data respecting the negotiation of each purchase or con- 
tract under clauses (1) and (7) — (17) of subsection (a) shall be kept 
by the contracting agency for six years after the date of final payment 
on the contract. 

(c) This section does not authorize — 

(1) the negotiation of a contract to construct or repair any 
building, road, sidewalk, sewer main, or similar item, unless — 

(A) it is made under clauses (1) — (3), (10) — (12), or (15) 
of subsection (a) ; or 

(B) it is to be performed outside the United States; or 

(2 the erection, repair, or furnishing of any public building or 
public improvement. 



237 



55 



(d) Whenever the head of the agency determines it to be practicable, 
such advance publicity as he considers suitable with regard to the 
property involved and other relevant considerations shall be given for 
a period of at least 15 days before making a purchase of or contract for 
property, or a service, under clause (7) or (8) of subsection (a) in- 
volving more than $10,000. 

(e) A report shall be made to Congress, on May 19 and ^November 
19 of each year, of the purchases and contracts made under clauses 
(11) and (16) of subsection (a) during the period since the date of 
the last report. The report shall — 

( 1 ) name each contractor ; 

(2) state the amount of each contract; and 

(&) describe, with consideration of the national security, the 
propertv and services covered by each contract. 

(f ) For the purposes of the following laws, purchases or contracts 
negotiated under this section shall be treated as if they were made with 
formal advertising: 

(1) Sections 35 — 15 of Title 41. 

( 2 ) Sections 276a— 276a-5 of Title 40. 

(3) Sections 324 and 325a of Title 40. 

(g) In all negotiated procurements in excess of $2,500 in which rates 
or prices are not fixed by law or regulation and in which time of de- 
livery will permit, proposals, including price, shall be solicited from 
the maximum number of qualified sources consistent with the nature 
and requirements of the supplies or services to be procured, and writ- 
ten or oral discussions shall be conducted with all responsible offerors 
who submit proposals with a competitive range, price, and other fac- 
tors considered: Provided, however, That the requirements of this 
subsection with respect to written or oral discussions need not be ap- 
plied to procurements in implementation of authorized set-aside pro- 
grams or to procurements where it can be clearly demonstrated from 
the existence of adequate competition or accurate prior cost experience 
with the product, that acceptance of an initial proposal without dis- 
cussion would result in fair and reasonable prices and where the re- 
quest for proposals notifies all offerors of the possibility that award 
may be made without discussion. ^_ 

(h) Except in a case where the Secfetarv of Defense determines 
that military requirements necessitate specification of container sizes, 
no contract for the carriage of Government property in other than 
Government-owned cargo containers shall require carriage of such 
propertv in cargo containers of anv stated length, height, or width. 
(Aug. 10, 1956. ch. 1041, 70A Stat, 128; Aug. 28, 1958, Pub. L. 85-800, 
§ 7, 72 Stat. 967; Sept. 2, 1958. Pub. L. 85-861, § 33(a) (12), 72 Stat. 
1565; Sept. 10, 1962. Pub. L. 87-653. § l(a)-(c), 76 Stat, 528; Mar. 16, 
1968, Pub. L. 90-286, § 5, 82 Stat. 50; Sept. 20, 1968, Pub. L. 90-500, 
Title IV, § 405, 82 Stat. 851.) 

8. Sections 3313, 6386(c) and 8313 of Title 10. These provisions pro- 
vide authority to suspend laws for mandatory retirement or separa- 
tion during war or national* emergency. The committee was advised 
that this authority makes it possible to suspend such requirements as 
to some of the 913 armed forces members missing in action in South- 
east Asia. The provisions presently permit them to remain in the 



238 



56 

Armed Services until they return or are accounted for. The three sec- 
tions are as follows : 

§ 3313. Suspension op laws for promotion or mandatory retirement 
or separation during war or emergency. 
In time of war, or of emergency declared by Congress or the Presi- 
dent, the President may suspend the operation of any provision of law 
relating to promotion, or (mandatory retirement or separation, of com- 
missioned officers of the Regular Army. (Aug. 10, 1956, ch. 1041, 70A 
Stat. 193.) 

§ 8313. Suspension of laws for promotion or mandatory retirement 
or SEPARATION during war or emergency. 
In time of war, or of emergency declared by Congress or the Presi- 
dent, the President may suspend the operation of any provision of law 
relating to promotion, or mandatory retirement or separation, of com- 
missioned officers of the Regular Air Force. (Aug. 10, 1956, ch. 1041, 
70A Stat. 519.) 

§ 6386 Suspension : preceding sections 

(a) The President may suspend any provision of the preceding sec- 
tions of this chapter relating to officers serving in the grades of lieu- 
tenant and lieutenant (junior grade) in the Navy, other than women 
officers appointed under section 5590 of this title, or relating to male 
officers serving in the grades of captain and first lieutenant in the 
Marine Corps during any period when — 

(1) the number of male officers serving on* active duty in the 
grade of ensign and above in the line of the Navy exceeds the 
number of male officers on the active list in the line of the Navy ; 
and 

(2) he determines that the needs of the service so require. 

(b) Officers in the following categories are not counted as officers 
serving on active duty for theipurpose of clause (1) of subsection (a) : 

( 1 ) Retired officers. 

(2) Officers of the Naval Reserve assigned to active duty for 
training. 

(3) Officers of the Naval Reserve ordered to active duty in con- 
nection iwith organizing, administering, recruiting, instructing, 
training, or drilling the Naval Reserve. 

(4) Officers of the Naval Reserve ordered to temporary active 
duty to prosecute special work. 

(c) During a war or national emergency, the President may sus- 
pend any provision of the preceding sections of this chapter. Such a 
suspension may not continue beyond June 30 of the fiscal year follow- 
ing that in which the war or national emergency ends. (Aug. 10, 1956, 
ch. 1041, 70 A Stat. 408.) 



HOUSE DEBATE AND ADOPTION OF H.R. 3884, 
94th CONGRESS 

[Congressional Record — v. 121, Sept. 4, 1975 — pp. H8325-H8341] 

Providing for Consideration of H.R. 3884, National Emergencies 

Mr. Delaney. Mr. Speaker, by direction of the Committe on Rules, 
I call up House Resolution 524 and ask for its immediate 
consideration. 

The Clerk read the resolution, as follows : 

H. Res. 524 

Resolved, That upon the adoption of this resolution it shall be in order to move 
that the House resolve itself into the Committee of the Whole House on the 
State of the Union for the consideration of the bill (H.R. 3884) to terminate 
certain authorities with respect to national emergencies still in effect, and to 
provide for orderly implementation and termination of future national emer- 
gencies. After general debate, which shall be confined to the bill and shall 
continue not to exceed one hour, to be equally divided and controlled by the 
chairman and ranking minority member of the Committee on the Judiciary, 
the bill shall be read for amendment under the five-minute rule. At the conclu- 
sion of the consideration of the bill for amendment, the Committee shall rise 
and report the bill to the House with such amendments as may have been 
adopted, and the previous question shall be considered as ordered on the bill 
and amendments thereto to final passage without intervening motion except one 
motion to recommit. 

The Speaker. The gentleman from New York (Mr. Delaney) is 
recognized for 1 hour. 

Mr. Delaney. Mr. Speaker, I yield 30 minutes to the gentleman 
from Mississippi (Mr. Lott) pending which I yield myself such time 
as I may consume. 

(Mi-. Delaney asked and was given permission to revise and extend 
his remarks.) 

Mr. Delanet. Mr. Speaker. House Resolution 524 makes in order 
the consideration of H.R. 3884. It provides for an open rule with 
one hour of general debate. The purpose of H.R. 3884 is to terminate 
all powers and authorities under any national emergency existing on 
the date of enactment as of two years from that date. As to future 
emergencies, the bill provides certain procedures, requirements, 
powers, and authorities concerning their declaration and termination. 

H.R. 3884 authorizes the President to proclaim a national emer- 
gency when, in his opinion, such a declaration is necessary, and re- 
quires the proclamation to be transmitted to the Congress and pub- 
lished in the Federal Register. A national emergency may be 
terminated by a concurrent resolution of the Congress. 

Mr. Speaker, passage of this bill will have the positive effect of 
ending the practice of reconducting governmental activity under the 
authority of laws which derive their meaning from emergencies de- 
clared years in the past to meet problems and situations which have 

(239) 



240 

long since disappeared or are now drastically changed. I urge the 
adoption of House Resolution 524 in order that we may discuss and 
debate H.R. 3884. 

Mr. Lott. Mr. Speaker, I yield myself such time as I may consume. 

Mr. Speaker, the gentleman from New York has explained the 
provisions of this rule, which allows for the consideration of H.R. 3884, 
national emergencies; but I would like to comment briefly on the rule 
and the bill at this time also. 

This rule, House Resolution 524, provides for the House to resolve 
itself into the Committee of the Whole for consideration of 
H.R. 3884. After general debate, which shall be confined to the bill 
and shall not exceed one hour, the bill shall be read for amendment 
under the five-minute rule. 

The purpose of this legislation is to terminate certain authorities 
with respect to national emergencies still in effect and to provide for 
the orderly implementation and termination of future national emer- 
gencies. To accomplish this goal the bill includes the following 
provisions : 

First, terminates all powers and authorities under any national 
emergency existing on the date of enactment as of two years from that 
date. 

Second, authorizes the President to proclaim a national emergency 
and requires the proclamation to be transmitted to the Congress and 
published in the Federal Register. 

Third, provides for termination of such emergencies either by Con- 
gress by concurrent resolution or by Presidential proclamation. 

Fourth, provides that upon the declaration of the national emer- 
gency, the President will be required to specify which emergency 
statutes are to be utilized. 

Fifth, requires that after the declaration of a national emergency 
or declaration of war, the President shall submit to Congress 90 days 
after each six-month period a report of total expenditures which are 
attributable to powers and authorities exercised under such declara- 
tions. A final report is required 90 days after the termination of the 
emergency of war. 

Sixth, repeals a number of obsolete national emergencies now in 
effect, some of which date hack to before "World War II. 

Since this bill does not provide for any new programs, no costs are 
contemplated or predicted. 

Mr. Speaker. I know of no serious objections to this measure : and I 
would urge, therefore, the adoption of this rule so that the House may 
proceed to consider the legislation. 

Mr. Delaney. Mr. Speaker, I move the previous question on the 
resolution. 

The previous question was ordered. 

The Speaker. The question is on the resolution. 

The question was taken : and the Speaker announced that the ayes 
appeared to have it. 

Mr. Charles H. Wilson of California. Mr. Speaker, I object to the 
vote on the ground that a quorum is not present and make the point of 
order that a quorum is not present. 

The Speaker. Evidently a quorum is not present. 

The Senreant at Arms will notify absent Members. 



241 



The vote was taken by electronic device, and there were — yeas 382, 
nays 0, answered "present'' 2, not voting 49, as follows : 



Abzug 

Adams 

Addabbo 

Alexander 

Anibro 

Anderson, Calif. 

Anderson, 111. 

Andrews, N. Dak. 

Annunzio 

Archer 

Armstrong 

Ashbrook 

Ashley 

Aspin 

AuCoin 

Badillo 

Bafalis 

Baldus 

Barrett 

Baucus 

Bauman 

Beard, R.I. 

Beard, Tenn. 

Bedell 

Bell 

Bennett 

Bergland 

Bevill 

Biaggi 

Bingham 

Blanchard 

Blouin 

Boggs 

Boland 

Boiling 

Bonker 

Bowen 

Brademas 

Breaux 

Breckinridge 

Brinkley 

Brodhead 

Brooks 

Broomfield 

Brown, Calif. 

Brown, Mich. 

Brown, Ohio 

Broyhill 

Buchanan 

Burgener 

Burke, Calif. 

Burke, Mass. 

Burleson, Tex. 

Burlison, Mo. 

Burton, John 

Burton, Phillip 

Butler 

Byron 

Carney 

Carr 

Carter 



[Roll Xo. 493] 

YEAS— 382 

Casey 

Cederberg 

Chappell 

Clancy 

Clausen, Don H. 

Clawson, Del 

Cleveland 

Cochran 

Cohen 

Collins, 111. 

Collins, Tex. 

Conable 

Conlan 

Conte 

Corman 

Cornell 

Cotter 

Coughlin 

Crane 

D'Amours 

Daniel, Dan 

Daniel, R. W. 

Daniels, N.J. 

Danielson 

Davis 

de la Garza 

Delaney 

Dellums 

Dent 

Derrick 

Devine 

Dickinson 

Dingell 

Dodd 

Downey, N.Y. 

Downing, Va. 

Drinan 

Duncan, Tenn. 

du Pont 

Early 

Bckhardt 

Edgar 

Edwards, Ala. 

Edwards, Calif. 

Eilberg 

Emery 

English 

Erlenborn 

Esch 

Eshleman 

Evans, Colo. 

Evans, Ind. 

Fascell 

Fenwick 

Findley 

Fish 

Fisher 

Fithian 

Flood 

Florio 

Flowers 



Flynt 

Ford, Mich. 

Ford, Tenn. 

Fountain 

Frenzel 

Frey 

Fuqua 

Gaydos 

Gibbons 

Gilinan 

Ginn 

Goldwater 

Gonzalez 

Goodling 

Gradison 

Grassley 

Green 

Gude 

Guyer 

Hagedorn 

Hall 

Ha miner schmidt 

Hanley 

Hannaford 

Hansen 

Harkin 

Harrington 

Harris 

Harsha 

Hastings 

Hawkins 

Hayes, Ind. 

Hays, Ohio 

Hechler, \V. Va. 

Heckler, Mass. 

Hefner 

Heinz 

Helstoski 

Henderson 

Hicks 

Hightower 

Hillis 

Hinshaw 

Holland 

Holt 

Holtzman 

Howe 

Hubbard 

Hughes 

Hutchinson 

Hyde 

I chord 

Jacobs 

Jeffords 

Jenrette 

Johnson, Calif. 

Johnson, Colo. 

Johnson, Pa. 

Jones, Ala. 

Jones, N.C. 

Jores, Okla. 



242 



Jones, Tenn. 


Murphy, N.Y. 


Shipley 


Jordan 


Murtha 


Shriver 


Karth 


Myers, Ind. 


Shuster 


Kasten 


Myers, Pa. 


Sikes 


Kastenmeier 


Natcher 


Simon 


Kazen 


Neal 


Sisk 


Kelly 


Nichols 


Skubitz 


Kemp 


Nix 


Slack 


Ketchum 


Nolan 


Smith, Iowa 


Keys 


Nowak 


Smith, Nebr. 


Koch 


Oberstar 


Snyder 


Krebs 


Obey 


Spellman 


Krueger 


O'Brien 


Spence 


LaFalce 


O'Hara 


Staggers 


Lagomarsino 


O'Neill 


Stanton, J. William 


Landrum 


Ottinger 


Stanton, James V. 


Latta 


Passman 


Stark 


Leggett 


Patman, Tex. 


Steed 


Lehman 


Patterson, Calif. 


Steelman 


Lent 


Pattison, N.Y. 


Steiger, Ariz. 


Levitas 


Perkins 


Steiger, Wis. 


Litton 


Pettis 


Stephens 


Lloyd, Calif. 


Peyser 


Stratton 


Lloyd, Tenn. 


Pickle 


Studds 


Long, La. 


Pike 


Sullivan 


Lott 


Poage 


Symington 


Lujan 


Pressler 


Symms 


McCloskey 


Preyer 


Talcott 


McCollister 


Price 


Taylor, Mo. 


McDade 


Quie 


Taylor, N.C. 


McFall 


Quillen 


Thompson 


McKinney 


Railsback 


Thone 


Macdonald 


Randall 


Thornton 


Madden 


Regula 


Traxler 


Madigan 


Reuss 


Treen 


Maguire 


Rhodes 


Tsongas 


Mahon 


Richmond 


Udall 


Mann 


Rinaldo 


Vander Veen 


Martin 


Risenhoover 


Vanik 


Matsunaga 


Roberts 


Vigorito 


Mazzoli 


Robinson 


Waggonner 


Meeds 


Rodino 


Wampler 


Melcher 


Rogers 


Waxman 


Metcalfe 


Roncalio 


Weaver 


Meyner 


Rooney 


Whalen 


Mezvinsky 


Rose 


White 


Michel 


Rosenthal 


Whitehurst 


Mikva 


Rostenkowski 


Whitten 


Milford 


Roush 


Wiggins 


Miller, Calif. 


Rousselot 


Wilson, Bob 


Miller, Ohio 


Roybal 


Wilson, C. H. 


Mineta 


Runnels 


Wilson, Tex. 


Minish 


Ruppe 


Winn 


Mink 


Russo 


Wirth 


Mitchell, Md. 


Ryan 


Wolff 


Mitchell, N.Y. 


St Germain 


Wright 


Moakley 


Santini 


Wydler 


Moffett 


Sarasin 


Wylie 


Mollohan 


Sarbanes 


Yates 


Montgomery 


Satterfield 


Yatron 


Moore 


Scheuer 


Young, Fla. 


Moorhead, Calif. 


Sclmeebeli 


Young, Ga. 


Moorhead, Pa. 


Schroeder 


Young, Tex. 


Morgan 


Schulze 


Zablocki 


Moss 


Sebelius 


Zeferetti 


Motti 


Seiberling 




Murphy, 111. 


Sharp 





M os her 



243 

NAYS— 
ANSWERED "PRESENT"— 2 
Vander Jagt 

NOT VOTING— 49 



Abdnor 


Hamilton 


Andrews, N.C. 


Hebert 


Biester 


Horton 


Burke. Fla. 


Howard 


Chisholm 


Hungate 


Clay 


Jarman 


Conyers 


Kindness 


Derwinski 


Long, Md. 


Diggs 


McClory 


Duncan, Oreg. 


McCormack 


Evans, Tenn. 


McDonald 


Fary 


McEwen 


Foley 


McHugh 


Forsythe 


McKay 


Fraser 


Ma this 


Giaimo 


Mills 


Haley 


Nedzi 



Patten, N.J. 

Pepper 

Pritchard 

Rangel 

Rees 

Riegle 

Roe 

Solarz 

Stokes 

Stuckey 

Teague 

Ullman 

Van Deerlin 

Walsh 

Young, Alaska 



So the resolution was agreed to. 

The Clerk announced the following pairs : 

Mr. Hebert with Mr. Fraser 

Mrs. Chisholm with Mr. Riegle. 

Mr. Giaimo with Mr. Long of Maryland 

Mr. Howard with Mr. Foley. 

Mr. Patten with Mr. Duncan of Oregon. 

Mr. Pepper with Mr. Evans of Tennessee. 

Mr. Rangel with Mr. McCormack. 

Mr. Teague with Mr. Abdnor. 

Mr. Diggs with Mi". Mills. 

Mr. Hamilton with Mr. Biester. 

Mr. Hungate with Mr. Jarman. 

Mr. Clay with Mr. Fary. 

Mr. Sruckey with Mr. Burke of Florida. 

Mr. Stokes with Mr. Rees. 

Mr. Mathis with Mr. Derwinski. 

Mr. Conyers with Mr. Andrews of North Carolina. 

Mr. Nedzi with Mr. Forsythe. 

Mr. Haley with Mr. McKay. 

Mr. McHugh with Mr. Horton. 

Mr. Solarz with Mr. McDonald of Georgia. 

Mr. Van Deerlin with Mr. Kindness. 

Mr. Ullman with Mr. McClory. 

Mr. Roe with Mr. McEwen. 

Mr. Young of Alaska with Mr. Walsh. 

The result of the vote was announced as above recorded. 
A motion to reconsider was laid on the table. 

National Emergencies 

Mr. Flowers. Air. Speaker. I move that the House resolve itself into 
the Committee of the Whole House on the State of the Union for the 
consideration of the bill (H.R. 388-i). To terminate certain authorities 
with respect to national emergencies still in effect, and to provide 
for orderly implementation and termination of future national 



The motion was agreed to. 



244 



IN THE COMMITTEE OF THE WHOLE 



Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the 
bill H.R. 3884, with Mr. Roncalio in the chair. 

The Clerk read the title of the bill. 

By unanimous consent, the first reading of the bill was dispensed 
with. 

The Chairman. Under the rule, the gentleman from Alabama 
(Mr. Flowers) will be recognized for 30 minutes, and the gentleman 
from California (Mr. Moorhcad) will be recognized for 30 minutes. 

The Chair recognizes the gentleman from Alabama (Mr. Flowers). 

Mr. Flowers. Mr. Chairman, I yield such time as he may consume to 
the distinguished chairman of the Committee on the Judiciary, the 
gentleman from New Jersey (Mr. Rodino). 

Mr. Rodino. Mr. Chairman, I wish to commend the gentleman from 
Alabama (Mr. Flowers) as well as the ranking member of the sub- 
committee (Mr. Moorhead), for their leadership in the handling of 
this legislation which is sorely needed to bring about a termination of 
unnecessary emergency powers. 

This is a bill which provides for a statutory resolution and definition 
concerning the exercise of the powers and authorities in connection 
with national emergencies which may occur in the future. By provid- 
ing for a termination of powers and authorities relating to existing 
emergencies, the bill will make it possible for our Government to 
function in accordance with regular and normal provisions of law 
rather than through special exceptions and procedures which were 
intended to be in effect for limited periods during specific emergency 
conditions. 

Presently, the national emergency, declared in December of 1950 by 
President Truman in connection with the Korean conflict, is in effect. 
The even earlier emergency declared by President Roosevelt in March 
of 1933 to meet the pressing problems of the Depression has not ac- 
tually been terminated. Two other emergencies are still in effect. There 
was a national emergency proclaimed on March 23, 1970. because of 
a Post Office strike, and again on August 15. 1971, a national emer- 
gency was declared to deal with balance of payments and other inter- 
national problems. Tt can. therefore, be stated that there has been an 
emergency in one form or another for the last 43 years. This bill will 
end the practice of conducting governmental activity under authority 
of laws which derive force from emergencies declared years in the 
past to meet problems and situations which have long since dis- 
appeared or are now drastically changed. The continued and almost 
routine utilization of such emergency authorities for years after the 
original crisis serves to emphasize the fact that there is an urgent 
need to provide adequate laws to meet our present-day needs. 

Legislation intended for use in crisis situations is bv its nature not 
well suited in normal, day-to-day Government operations. It is also 
conceivable that the existence of emergency authority has actually dis- 
couraged legislative action. Statutory authorization may not have 
been sought bv Executive agencies or o-ranted bv the Congress because 
of a failure to recognize the need. This bill will provide a basis for a 
return to a more rational and normal state of law and will eliminate 



245 

reliance on unnecessary and undesirable emergency powers without 
upsetting routine and essential portions of our present legislative and 
administrative structure. In providing procedures to govern future 
emergencies, the bill will establish a system which will prevent such 
a continuing reliance on emergency statutes from recurring. 

The reports received from the departments on the 93d Congress bill, 
and testimonv before the Committee indicate support for the provisions 
of this bill. 

The report of the Committee received from the Department of De- 
fense recognized that world conditions and national conditions have 
changed since the state of national emergency was declared in 1950. 
It recognized the desirability of terminating existing states of emer- 
gency and further stated that it has no objection to their termination. 
This Department and others have noted that in some areas emergency 
authorities had over the years come to be relied upon in the day-to-day 
operations and that these continuing needs would have to be met. The 
Committee considered the effect of the bill on these functions and con- 
cluded that the two-year period fixed in the amended bill would pro- 
vide the Congress with a reasonable opportunity to consider permanent 
legislation to replace the authority provided under the specific emer- 
gency provisions that provide statutory authority for such day-to-day 
functions. This period for orderly transition should preclude any un- 
due dispution in Government operations. 

The report received from the Department of the Treasury on No- 
vember 1± 1974. was considered by the Committee with particular ref- 
erence to emergency powers. That report stated the position of that 
department concerning the authority providing for regulation during 
emergencies of banking transactions, gold and silver activities, transac- 
tions in foreign exchange, and the exercise of rights in property sub- 
ject to American jurisdiction in which foreign nationals have an 
interest. 

Some of these matters are of current significance and: therefore, the 
bill as reported by the Committee contains the exception in section 
502(a) (1) concerning section 5(b) of the act of October 6, 1917, the 
Trading With the Enemy Act. 

Title 1 of the bill provides that after two years, all powers and au- 
thorities sed by the President or other officer or employee of the 
Federal Government, based upon any declaration of national emer- 
gency in effect on the date of enactment will be terminated. The provi- 
sions of title 1 terminating powers and authorities possessed by the 
Executive as the result of any prior declaration of national emergency 
are a basic part of the bill. It is recognized that an immediate termina- 
tion without a period for transition in adjustment could, to a degree, 
disrupt the functioning parts of our Government. After study and con- 
sideration, the Congress may or may not wish to change some of these 
practices and procedures ba^ed upon the emergency statutes. The bill 
meets this problem in two ways: First, a limited number of powers 
and authorities which have been identified as necessary on a continuing 
basis are exempted from termination by section 502 of the amended 
bill. Second, as T have indicated above, the termination date of all other 
powers and authorities i- set at two years from date of enactment. This 
will also serve to <rive Government departments and agencies a period 
in which to identify and brin<r to the attention of the Congress provi- 



246 

sions which in their estimation merit legislative consideration. The 
definite time limit fixed in the bill will require that the agencies take 
prompt action to review their legislative authority and make prompt 
recommendations to the Congress for any needed action. After the two- 
year period, the Government agencies should be freed from a depend- 
ence on emergencies authority and Government operation will proceed 
on the basis of procedures under permanent law and under new enact- 
ments drafted to meet current needs and operations. 

Any emergency declared after the date of enactment of this legisla- 
tion would not be terminated by title I. but would instead be governed 
by the limiting scheme created by title II. By definition, title I would 
affect those statutes whose conferral of powers is expressly conditioned 
upon a Presidential declaration of national emergency. This is pro- 
vided in section 101(b), which defines "any national emergency in 
effect'' to mean only "a general declaration of emergency made by the 
President."' Accordingly, laws like the I>fense Production Act of 
1950, which do not require a Presidential declaration of emergency for 
their use, are not affected by this title — even though they may be 
referred to in a general sense as "emergency" statutes. 

Title II of the bill concerns the declaration of future national emer- 
gencies. These provisions would require that in the future there shall 
be an improved definition and classification of the nature and effect 
of declaration of national emergencies. The provisions of this title of 
the bill, together with those of titles III and IV of the amended bill, 
are included to insure that the Congress will exercise continuing and 
effective oversight in connection with any future emergencies. 

Section 201 concerns Presidential proclamations of a national emer- 
gency and authorizes such proclamations upon a finding that it is 
essential to the preservation, protection, and defense of the Constitu- 
tion or to the common defense, safety or well-being of the territory or 
people of the United States. This language of section 201(a) is not 
intended to grant any additional authority to the President. Rather it 
indicates the general nature of the circumstances in which a declara- 
tion might be issued. Subsection (b) limits the effectiveness of provi- 
sions of law to be exercised during a national emergency to periods 
when a President's declaration of national emergency is in effect and 
then only in accordance with the balance of the provisions of the bill. 
This latter provision has particular reference to the provisions of 
section 301 which requires that the President specify the provisions of 
law he will utilize or under which other officers of the Government 
will act. Subsection (b) also contains a provision stating that no sub- 
sequent enactment will supersede the title unless it doe? so in specific 
terms declaring that the new law supersedes the provisions of this 
title. 

Section 202(a) provides for the termination of national emergencies 
declared by the President in accordance with title II of the bill. They 
would be terminated by concurrent resolution of the Congress or by a 
proclamation by the President. The subsection contains an additional 
requirement that at the end of each year following the declaration of 
an emergency which is still in effect, the President shall publish in the 
Federal Regisia r and transmit to the Congress a notice stating that 
the emergency is still in effect. This title of the bill provides, for the 
first time, explicit provision for the President to make the declaration 



247 

of national emergency which certain statutes require. This clarifies an 
existing problem as to emergency statutes. At present, this power can 
only be implied with respect to some statutes. When the act takes 
effect, emergency provisions will only be implemented by the President 
in accordance with the terms of title II and title III of the amended 
bill. 

In providing for the termination of emergency powers as well as 
their commencement, the bill makes an important change in the law. 
The absence of such statutory requirements and procedures in the past 
has resulted in the failure to terminate emergency powers and this 
in turn has given rise to the present situation. Under present law. 
which does not contain explicit termination provisions, proposals for 
the use of emergency power often generate discussion as to whether 
existing emergencies have lapsed or grown stale due to passage of time 
and change of circumtances. Section 202 of the present bill will elim- 
inate all uncertainty on that point, since it sets forth the prescribed 
means of termination and also requires the continuing existence of a 
state of emergency to be formally recorded each year. 

Subsections (b) and (c), of section 202 provide for procedures 
which will govern the consideration of the Congress of a concurrent 
resolution which would terminate a national emergency. These pro- 
visions are verv similar to those set forth in section 7 of Public Law 
93-148. the War Powers Act. of Xovember 7, 1973. 

Section 301 of the amended bill contains the provision referred to 
above providing that powers and authorities made available by statute 
for use during national emergencies are effective after a declaration 
of national emergency only after the President specifies the specific 
provisions of such laws which will be utilized. Under existing law, 
such a declaration would have the effect of reviving many emergency 
provisions throughout the United States Code, whether or not they 
are relevant to the emergency at hand. In many cases, the provisions 
are not self-executing so that their mere availability does not bring 
them into force without specific implementing directives. In other 
cases, however, changes in law automatically take effect during times 
of national emergency. Section 301 of the amended bill would change 
this by establishing that no provision of law shall be triggered by a 
declaration of national emergency unless and until the President spec- 
ifies that provision as one of those under which he or other officers 
will act. The specification may be made either in the declaration of 
national emergency or in subsequent Executive orders. This will 
enable the Executive to choose specific provisions needed to deal with 
the emergency at hand; and it will put Congress and the public on 
notice as to precisely what laws are going to be invoked. 

Section 401 of the amended bill details the accountability and re- 
porting requirements applicable to the President in connection with 
national emergencies, All significant orders of the President shall 
be filed and an index maintained of that file. Further, each Executive 
agencv is to mandate a file and an index of all rules and regulations 
issued during an emergency of war. These orders, rules, and regulations 
are to be transmitted to the Congress. Subsection (c) requires that the 
President transmit to the Congress within 90 days of the end of each 
six-month period after declaration of a national emergency or deelara- 



66-474 O - 76 - 17 



248 

tion of war a report of the total expenditures of the Government at- 
tributable to the exercise of powers and authorities brought into force 
by the declaration. A final report of all such expenditures is required 
within 90 days of the termination of the war or the emergency. 

Section 501 provides for the repeal of provisions of seven laws which 
have been found to be superseded or obsolete, and section 502 for the 
continuation in effect of other provisions of law which have been de- 
termined to be important to governmental operation. 

As has been discussed, a basic problem with emergency legislation 
derives from the fact that by continued and customary use the author- 
ity has become the basis for current Government activity. Simply to 
abolish all emergency powers and dispositions on a specified date would 
not actually solve this problem but would ignore that in some instances 
this authority is vital to some governmental functions. For years, this 
Committee has been concerned with the identification of emergency 
statutes and their utilization. 

On January 25, 1962, the Committee issued a committee print identi- 
fying such laAvs. More recently, the effort which the Executive and 
Legislative branches have devoted to this bill and earlier bills in the 
past several years has also been directed toward identifying those 
powers and dispositions which should be preserved while the rest are 
abandoned. As is provided in section 502(b) , it is intended that within 
a reasonably short time those provisions of law can be converted from 
the "emergency" portions of the code in which they now appear to 
standard, nonemergency sections. Until that is achieved, however, the 
technical conditions which enable them to remain effective must be 
preserved. This is achieved in section 502 of the amended bill by pre- 
serving the effect of previously issued declarations of national emer- 
gency only with respect to those eight specified provisions. 

As stated in the committee report, the facts developed in the hear- 
ings on the bill demonstrate the need for legislative action. The 
testimony by representatives of departments in connection with this 
subject, and the reports received from those departments that the time 
has come for positive and constructive legislative action in the manner 
provided for in the bill. It is recommended that the amended bill be 
considered favorably. 

Mr. Flowers. Mr. Chairman, I yield myself such time as I may 
consume. 

Mr. Chairman, I thank the distinguished chairman for his com- 
ments, and I might also thank him for his leadership in insisting that 
this matter receive early attention. It was not by way of twisting 
my arm, because we were agreeable to every aspect of this legislation, 
but in our early planning the gentleman insisted that this matter re- 
ceive early attention and that is exactly what we have given it. 

Mr. Chairman, the purpose of the bill is to terminate all powers 
and authorities under any national emergency existing on the date 
of enactment as of two years from that date. 

As to future emergencies, the bill provides procedures and require- 
ments concerning their declaration and termination and provides for 
powers and authority to be exercised in the case of future emergencies. 
It would also require that records be maintained of significant orders 
of the President and of agency rules and regulations issued during a 



249 

war or national emergency, and that such orders and rules and reg- 
ulations be transmitted to the Congress. A report of all expenditures 
directly attributable to the exercise of powers and authorities under 
a declaration of national emergency would have to be transmitted to 
the Congress within 90 days after each six-month period under the 
declaration. 

The bill provides for the repeal of certain obsolete statutes and for 
the continuance in effect of emergency powers and authority under 
listed statutes which are important to present functions of the 
Government. 

The bill provides for statutory resolution and definition concern- 
ing the exercise of the powers and authorities in connection with na- 
tional emergencies which may occur in the future. By providing for 
a termination of powers and authorities relating to existing emergen- 
cies, the bill will make it possible for our Government to function in 
accordance with regular and normal provisions of law rather than 
through special exceptions and procedures which were intended to be 
in effect for limited periods during specific emergency conditions. 

Presently, the national emergency declared in December of 1950 
by President Truman in connection with the Korean conflict is in 
effect. The even earlier emergency declared by President Roosevelt in 
March of 1933 to meet the pressing problems of the depression has not 
actually been terminated. Two other emergencies are still in effect. 
There was a national emergency proclaimed on March 23. 1970. be- 
cause of a Post Office strike, and again on August 15, 1971, a national 
emergency was declared to deal with balance of payments and other 
international problems. It can. therefore, be stated that there has lie en 
an emergency in one form or another for the last 43 years. This bill 
would end the practice of conducting governmental activity under 
authority of laws which derive force from emergencies declared years 
in the past to meet problems and situations which have long since dis- 
appeared or are now drastically changed. In providing procedures to 
govern future emergencies, the bill will establish a system which will 
prevent such a continuing reliance on emergency statutes from recur- 
ring. 

Prior to the consideration of legislation in the Senate, the Senate 
Special Committee on the Termination of the National Emergency 
conducted a two-year study on the problems, application and scope of 
emergency statutes. The bill S. 3957, which passed the Senate late 
in the last Congress, was to a huge degree a product of the work of 
that special committee. The present bill. H.P. 3884, incorporates the 
basic provisions of the earlier bill, S. 3957. as it was finally passed by 
the Senate and referred to this Committee in the 93d Congress. 

It is recognized that an immediate termination without a period 
for transition and adjustment conld undo and confuse many opera- 
tions which are necessary and functioning parts of our Government. 
After study and consideration, the Congress may or may not wish to 
change some of these practices and procedures based upon the emer- 
gency statutes. The bill meets this problem in two ways : First, a limited 
number of powers and authorities which have been identified as nec- 
essary on a continuing basis are exempted from termination by sec- 
tion 502 of the amended bill. Second, as discussed above, the termina- 



250 

tion date for all other powers and authorities is set at two years from 
date of enactment. This will also serve to give Government depart- 
ments and agencies a period in which to identify and bring to the 
attention of the Congress provisions which in their estimation merit 
legislative consideration. 

Section 202(a) provides for the termination of national emergencies 
declared by the President in accordance with title II of the bill. They 
would be terminated by concurrent resolution of the Congress or by 
a proclamation by the President. 

Subsections (b) and (c) of section 202 provide for procedures which 
will govern the consideration of the Congress of a concurrent resolu- 
tion which would terminate a national emergency. These provisions are 
very similiar to those set forth in section 7 of Public Law 93-148, the 
War Powers Act, of November 7, 1973. 

The committee has concluded that the facts developed in the hear- 
ings on the bill and as outlined in the committee report demonstrate 
the need for legislative action. The testimony by representatives of 
departments in connection with this subject, and the reports received 
from those departments have shown that there is general agreement 
that the time has come for positive and constructive legislative ac- 
tion in the manner provided for in this bill. It is recommended that 
the amended bill be considered favorably. 

Mr. Mazzoli. Mr. Chairman, will the gentleman yield ? 

Mr. Flowers. I yield to the gentleman from Kentucky. 

Mr. Mazzoli. Mr. Chairman, I thank the gentleman for yielding. 

The bill before us is a product of two years work by the Senate 
Special Committee on National Emergencies, extensive Senate debate 
in the 93d Congress, and thorough hearings this year conducted by the 
Subcommittee on Administrative Law and Governmental Relations 
chaired by my distinguished colleague, the gentleman from Alabama 
(Mr. Flowers). 

The process of study and debate has produced a bill establishing 
a sound approach for terminating previously declared — and currently 
existing — states of national emergency; providing for an orderly 
transition from emergency status to nonemergency status; and reg- 
ulating the declaration of future states of national emergency. 

If Congress is to take a serious and fundamental role in conducting 
the affairs of our Government, it must act to define and curtail the 
plenary powers possessed by the Executive branch under authority of 
the existing national emergencies. 

Four states of declared national emergency are still in existence 
today in 1975. 

First. President Roosevelt's declared national emergency of 1933 
to deal with the Great Depression. 

Second. President Truman's declared national emergency of 1950 
to deal with the Korean War. 

Third. President Nixon's declared national emergency of 1970 to 
deal with the Post Office strike. 

Fourth. President Nixon's declared national emergency of 1971 to 
deal with the Balance of Payments Crisis. 

These emergencies have given the United States a total of 41 years of 
emergency government, and have nurtured an Executive branch that 






251 

draws many of its powers from the 470 emergency statutes uncovered 
by the Senate Special Committee on National Emergencies during its 
study. 

Despite the fact that these emergency circumstances have ended, 
the Executive branch's day-to-day operations rely, in all too many 
instances on emergency powers. Important matters, such as the regula- 
tion of international trade, and routine matters such as leases of prop- 
erty by the General Services Administration are based on emergency 
authority. 

To prevent disruptions in the day-to-day Executive branch func- 
tions, H.E. 3884 would not terminate the existing emergencies until 
two years after enactment. 

Further, certain specific emergency powers would be exempted from 
the bill's effects with appropriate Congressional committees mandated 
to review these laws and report, their findings to the Congress within 
270 days. 

Congress could retain the emergency grants of power to the Presi- 
dent, revise them, or abolish them totally as it decided. 

H.R. 3884 also would delineate a specific role for Congress in the 
declaration and conduct of future national emergencies. 

This bill would require that the President's declaration of a national 
emergency must specify the emergency provisions of law under which 
he and his agents wish to operate. 

The President and all Executive agencies must report periodically 
to the Congress on the use of these powers, the orders issued under 
the authority of the national emergency and the expenditures made 
in pursuance of these authorities. 

At any time in this process. Congress could enact a concurrent 
resolution terminating the emergency. Every six months after declara- 
tion of a national emergency this bill requires that the Congress 
consider such a resolution of termination. 

The provisions of the bill relating to the termination of future 
emergencies are worth a comment. 

They require that Congress take specific action to enact a concur- 
rent resolution to terminate an emergency. Thus, since a declared 
national emergency does not expire at the end of a certain time. Con- 
gress of necessity must publicly debate and definitely settle the issue 
of the existence or nonexistence of a national emergency. 

Then by adopting H.R. 3884, we are consciously and deliberately 
forcing ourselves to come to grips periodically — and ultimately — 
with the vexing problems of national emergencies. The blame as well 
as the glory will be on the shoulders of the Congress in the years 
ahead. But that is as it is supposed to be — that is the responsible 
course to take. 

The courts have long recognized the need for Congressional over- 
sight of the emergency powers of the Presidency. In the Supreme 
Court's decision prohibiting President Truman's 1952 takeover of 
the steel mills. Justice Jackson wrote for the majority that — 

The President's power must stem from either an act of Congress or the 
Constitution itself . . . Emergency powers are consistent with free government 
only when their control is lodged elsewhere than in the Executive who exercises 
them ... In the practical working of our Government we . . . have evolved 
a technique within the framework of the Constitution by which normal Executive 



252 

powers may be considerably expanded to meet an emergency. Congress may and 
has granted extraordinary authorities which lie dormant in normal times but 
may be called into play by the Executive in war or upon proclamation of a 
national emergency. 

In the granting of those "extraordinary authorities" it is the re- 
sponsibility of the Congress to see that the powers are properly used 
and that they do "lie dormant in normal times." 

I support this bill and recommend that it be enacted as reported by 
the distinguished Committee on the Judiciary. 

Mr. Flowers. Mr. Chairman, I certainly appreciate the comments 
of the gentleman from Kentucky (Mr. Mazzoli), and I wish to thank 
him for his effective work on the subcommittee in this matter as well 
as with respect to other proposals. 

I also wish to thank the other members of the subcommittee, includ- 
ing the minority members headed by the gentleman from California 
(Mr. Moorhead), who have contributed greatly to this legislation. 

Mr. Moorhead of California. Mr. Chairman, I yield such time as 
he may consume to the ranking member of the Committee on the 
Judiciary, the gentleman from Michigan (Mr. Hutchinson). 

Mr. Hutchinson. Mr. Chairman, I rise in strong support of this 
needed, long overdue legislation. The "National Emergencies Act" is 
an appropriate and prudent response to an important policy question 
currently facing Congress. That is, how 7 extensive should be the powers 
granted to the President in a time of national emergency and, further, 
how should the exercise of these special powers be overseen and 
controlled ? 

As my colleagues in the House can ascertain from the content of 
this debate, we are in the anomalous situation of having been in a 
continuous state of national emergency since 1933. In fact, there are 
still in force four different national emergencies, the justification 
for which has now passed. What this means is the President of the 
United States has had a legal right to exercise sweeping, extracon- 
stitutional powers for the last 40 years. Included among these broad 
powers are : the right to seize property and certain commodities ; the 
right to control all modes of transportation ; the right to call up the 
Ready Reserves; and the right to extensively regulate various aspects 
of private enterprise. 

This measure seeks to remedy the fact that no statutory framework 
now exists to guide the conduct of our Government during a period 
of national emergency. Importantly, H.R. 3884 would establish stand- 
ards and guidelines for the future declaration and termination of 
national emergencies. Two years from the date of its enactment all 
the power and authority that the President could exercise pursuant 
to the four existing national emergencies, would be discontinued. Title 
IV of the bill sets up a reporting system, so that Congress will be 
regularly informed concerning the conduct of a national emergency. 
Through section 202 of the bill, Congress can act as a check on the 
possible arbitrary or unnecessary use of emergency powers, by termi- 
nating the national emergency on its own by passing a concurrent 
resolution. 

As a firm believer in a strong Presidency and Executive flexibility, 
I could not support this bill if it would impair any of the rightful 
constitutional powers of the President. It will have no impact on his 



253 

flexibility to declare a national emergency and to quickly respond if 
the necessity arises. The bill has no impact on the powers of the Presi- 
dent in time of war. Rather, what it seeks to assure is that the rule of 
law prevails in a national emergency situation and that it cannot be 
bypassed, merely because we find ourselves in a state of national 
emergency. 

H.R. 3884 is very similar to legislation (S. 3957) which unanimously 
passed the Senate near the end of the 93d Congress. It represents over 
two years of study and work, first by the Special Committee on the 
Termination of the National Emergency of the Senate, and, more 
recently, by the Subcommittee on Administrative Law and Govern- 
mental Relations of the House Judiciary Committee. Both groups are 
to be commended for their thorough and thoughtful review of the 
problem. 

The Ford Administration is on record as supporting this legisla- 
tion — both its philosophy and effect. However, the Administration has 
expressed reservations about one provision, that which would permit 
Congress to unilaterally end the existence of a national emergency by 
the enactment of a concurrent resolution. Otherwise, H.R. 3884 is 
acceptable to them. In fact. Administration officials were involved in 
drafting portions of the bill and their thoughts and views were con- 
tinuously sought out during different stages of the legislative process. 
For example, the list of exempted statutes in title V were included at 
the request of the Administration, to insure that the bill will not dis- 
rupt any essential governmental functions. 

In summary, this legislation is an effort at assuring that the exercise 
of emergency powers are confined to actual periods of national emer- 
gency and that Congress has a role in overseeing the conduct of na- 
tional emergencies. I recommend the favorable action of the House 
on this matter. 

Mr. Moorhead of California. Mr. Chairman, I yield myself such 
time as I may consume. 

Mr. Chairman. I rise in support of H.R. 3884 — the "National Emer- 
gencies Act." This legislation proposes to do away with the irrational 
and potentially dangerous practice of "government-by-emergency." 
In its place would be substituted a regularized machinery for the 
future declaration and termination of national emergencies. 

This measure was prompted by the findings of a two year study con- 
ducted by the Special Committee on the Termination of the National 
Emergency of the U.S. Senate, cochaired by Senator Charles McC. 
Mathias and Senator Frank Church. What they discovered was that 
not one. but four, national emergencies are still in effect. These are: 
first, the "Bank Holiday" emergency declared by President Roosevelt 
in the midst of the Depression on March 6. 1933: second, the Korean 
War emergencv. declared by President Truman on December 16. 1050; 
third, the national emergency declared on March 23. 1970. by Presi- 
dent Nixon to deal with the postal strike : and fourth, a national 
emergency to deal with international balance of payments and cur- 
rency problems, also declared by President Nixon on August 15, 1971. 

The continuing existence of these emergencies is not merely a histori- 
cal anachronism. Rather, the state of being in a national emergency 
triggers into effect over 470 different statutes, some of which grant 
the President extraconstitutional powers. These powers were, of 



254 

course, intended to assist him in dealing with a genuine emergency 
situation and not the everyday operation of Government. 

When testifying before the Subcommittee on Administrative Law 
and Governmental Relations of the House Judiciary Committee, on 
H.R. 3884, earlier this year. Assistant Attorney General Antonin 
Scalia stated : 

Since the purpose of such emergency laws is to confer upon the Government 
extraordinary authority which in normal times it would not have, one must 
assume that undue prolongation of states of emergency has the effect of creat- 
ing or perpetuating powers which neither the Congress nor the President would 
think desirable. 

So. the situation with which we have lived too long is, at best, cum- 
bersome and inefficient. At worst, it could allow for actions wholly 
inconsistent with our form of Government. 

It is interesting to note that, during the Second World War when 
the very existence of Britain was being challenged, and the possibility 
of invasion was imminent, Parliament took the precaution of extend- 
ing that wartime emergency — along with the accompanying powers, 
delegated to the Government's Ministers — for only 30 days at a time. 
Faithfully, every 30 days. Parliament undertook to review and extend 
the emergency bill for still another 30 days. 

The caution of the British Parliament certainly stands in stark 
contrast to the tendencies of the Congress in recent decades. Con- 
gress would do well to learn from our British counterparts for we 
have gone in the opposite direction, conferring any number of emer- 
gency powers on the Executive, in an open-ended fashion, without 
any supervision or control. 

There has been a great deal of talk about "oversight" in this House 
in the recent weeks and months. The legislation we consider today is 
an effort at genuine Congressional oversight. H.R. 3884 would estab- 
lish an orderly procedure for the handling of national emergency sit- 
uations. As I have indicated no such statutory framework now exists. 
Under H.R. 3884, Congress would assume the major role of reviewing 
and overseeing the conduct of the Executive branch in a national emer- 
gency situation. Most important, under its provisions, Congress would 
have the power to unilaterally terminate a national emergency should 
the facts warrant it. 

Specifically. H.R. 3884 would accomplish the following : 

First. Terminate all "powers and authorities" that could be exer- 
cised pursuant to the four existing national emergencies two years 
from the date of enactment. The rationale for a two-year grace period 
is that it allows those departments and agencies, currently relying on 
emergency-based authorities to perform everyday functions, to seek 
alternative authority ; 

Second. Establish a procedure for the declaration of future na- 
tional emergencies and provide for their termination by either the 
Congress or the President ; 

Third. Require that, after declaring a national emergency, the Pres- 
ident specify which emergency powers statutes he intends to utilize to 
deal with the situation ; 

Fourth. Impose reporting requirements on the President and the 
entire Executive branch, so that Congress will be advised regarding 



255 

' significant actions taken and funds expended in connection with an 
: emergency ; and 

Fifth. 'Repeal outright seven emergency-based statutes that are 
either obsolete or viewed as unnecessary. Also it would exempt eight 
statutes from the provisions of H.R. 3884, which are seen as essential 
to certain on-going functions of the Federal Government. It was felt 
that any interruption of their authority would cause serious prob- 
lems. The remaining emergency powers statutes would stay on the 
books, but be placed in a suspended status. They would be available 
for use during a future national emergency, if those specific powers 
are deemed necessary by the President. 

It is worth noting that among the exempted statutes are provisions 
contained in Title 10 of the United States Code dealing with manda- 
tory separation and retirement from military service. 

The exemption of these provisions prevents a premature and inad- 
vertent separation from the military of those men classified as POWs 
or MIA's in Southeast Asia. Clearly, a determination regarding the 
status of these brave young men should not be made indirectly, in the 
context of legislation dealing with Presidential emergency powers. 
Rather, that is a decision that ought to be made on its own facts, by 
the President and the Department of Defense. 

Another exempted law of considerable note is the so-called ''Trad- 
ing With the Enemy Act." which dates back to 1917. Originally de- 
signed to give the President the power to control commerce with 
countries with whom the United States was then at war. this authority 
was later expanded to include controls over certain domestic financial 
transactions. Since then, for example, this statute has been utilized as 
the authority for freezing the assets of nationals of enemy or occu- 
pied countries ; for the imposition of consumer credit controls ; and for 
establishing a foreign direct investment program. The case for its re- 
tention was effectively made by witnesses from the Treasury and De- 
partment of State, testifying before our subcommittee. 

In conclusion, Mr. Chairman. I would stress that the formulation 
and drafting of this legislation has been a genuinely bipartisan effort. 
The Ford Administration and Republican Members in both the House 
and Senate have been extensively involved in the work product you 
see before you. The Ford Administration is on record as supporting 
the establishment of statutory controls declaring and terminating na- 
tional emergencies. I urge my colleagues to vote favorablv on H.R. 
3884. 

Mr. Chairman, I hope this legislation will be passed by this Con- 
gress without any devastating effects from amendments that are not 
carefully thought out in advance. The Committee has carefully gone 
over this legislation and has tried to work it out to perfection. So I 
hope that there will be only minor changes made to the legislation, if 
any are necessary. 

Mr. Roisselot. Mr. Chairman, will the gentleman yield? 

Mr. Mooriiead of California. Yes, I yield to the distinguished gen- 
tleman from California. 

Mr. RorssELOT. Mr. Chairman, I appreciate my colleague vielding 
to me. 



256 

I wish to compliment the Committee and my colleagues, the gentle- 
man from California (Mr. Moorhead), especially, who I know has 
been avidly proposing these changes in such wide, broad emergency 
powers delegated to the President and the Executive branch for some 
time. 

I know that my colleague, the gentleman from California (Mr. 
Moorhead), has been, along with many other members of the Com- 
mittee on the Judiciary, anxious to change this so as to reassert con- 
gressional participation in the deliberations relating to national emer- 
gencies, and I wish to compliment my colleague, the gentleman from 
California, for his effort in this direction, along with the chairman 
of the committee and the other members of the Committee on the 
Judiciary. 

Mr. Chairman, I rise in support of H.R. 3884, legislation which 
would terminate the powers and authorities of the President and 
other Federal officials which are presently being derived from emer- 
gency declarations. This legislation provides that these declarations 
of national emergencies currently in effect terminate two years after 
the date of enactment of this bill. However, as originally introduced, 
H.R. 3884 provided that the termination would take place one year 
after the date of enactment, and I would have preferred that the one- 
year termination date be retained. 

In my opinion, it is intolerable that Presidential emergency powers 
derived from a 1933 declaration by President Roosevelt concerning 
the problems of the depression, a 1950 declaration by President Tru- 
man in connection with the Korean conflict, a 1970 declaration be- 
cause of the Post Office strike, and a 1971 declaration dealing with the 
balance-of-payments problem are still essentially in effect. The use 
of broad emergency powers by the Executive which include the right 
to seize property, take over transportation, institute martial laws, and 
indeed assume control of all aspects of private enterprise must be 
stopped. 

This legislation provides a new mechanism to give Congress the 
ability to oversee the use of these powers, to take action to terminate 
an emergency proclamation, and to determine if an emergency situ- 
ation actually exists. 

As elected Representatives of the people, I believe that we have the 
responsibility to guard against the taking of what essentially could be 
basic constitutional rights, and to also protect the Nation in times of 
a legitimate state of emergency. This is an important role which Con- 
gress must assume, and H.R. 3884 is a step in the right direction. 

Mr. Skubitz. Mr. Chairman, will the gentleman yield? 

Mr. Moorhead of California. Yes, I yield to the gentleman from 
Kansas. 

Mr. Skubitz. Mr. Chairman, I want to commend the Committee on 
the Judiciary for bringing this bill before us today. The statute books 
are cluttered with laws passed to meet a specific problem — only to 
remain on the books after the problem has long disappeared. Agencies 
of Government have learned to rely on old statutes to do their bid- 
ding — giving these statutes interpretation that were never dreamed 
of when the bills were enacted into law. Too often, such statutes are 
interpreted to give an agency authority to act when requested for new 
authority would be looked upon with a jaundiced eye. 



257 

The bill is the first step toward the elimination of emergency pow- 
er.-. I hope the Committee will consider the repeal of other type leg- 
! islation that has been in the books 60, 70 years — 100 years ago — never 
used or amended but a tool that might be called on to meet new prob- 
lems. The voice of the dead should not direct the steps of the living. 

I think that this is a piece of legislation long overdue. 

Mr. Flowers. Mr. Chairman, I yield 5 minutes to the gentleman 
from Massachusetts (Mr. Drinan). 

Mr. Drinan. Mr. Chairman, and members of the Committee, I 
commend the subcommittee on clarifying this jungle of law where for 
40 years the American people have lived under the shadow of laws that 
never should have been enacted or at least should have been repealed. 

I wish to point out, however, two deficiencies, the subject of which I 
will propose to cover in amendments at the appropriate time. 

Mr. Chairman, it seems to me that the problem of declaring a na- 
tional emergency is very analogous to what this Congress did in the 
War Powers Resolution Act of 1973. In that act. as is well known, 
Congress reviewed the Presidential powers and the Congressional 
powers and brought about a relatively happy marriage of those two 
powers. 

The declaration of a national emergency, it seems to me, confers 
upon the President powers that are awesome and potentially danger- 
ous, similar to the President's exercise of the war powers. Conse- 
quently. I do not think that this legislation as presently proposed 
should allow the President to unilaterally declare a national emer- 
gency whenever he decides that it is essential to do so. I think that we 
should follow the example of the War Powers .Vet and insist that the 
President consult, whenever possible, with the Congress before the 
enactment of the proclamation of emergency, and at every moment 
thereafter. 

Second, I do not think that we should allow the President to pro- 
claim an emergency and then have the burden placed upon the Con- 
gress to terminate that emergency. That is precisely what this bill does 
and. in my judgment, that is a defect. 

Once again, that is a sharp contrast with the war powers resolution 
which provides for automatic termination of the use of American 
forces unless Congress acts affirmatively to approve an extension. 

Mr. Chairman, in an amendment that I shall propose at the appro- 
priate time. T will urge the Congress to adopt an amendment to this 
very necessary bill that would provide that the emergency proclaimed 
by the President automatically be terminated within 30 days unless 
the Congress affirmatively seeks to extend the emergency. 

It is very significant to note in the testimony taken by the subcom- 
mittee that Senator Church said that was the original intent of the 
authors of this bill in the Senate. As it came out of the Special Commit- 
tee, Senator Church and others felt that the Congress should not have 
the burden ; that this emergency power should terminate automatically 
within 30 or 00 clays unless the Congress affirmatively renews that 
power. 

On page 30 of the hearing conducted by the subcommittee. Senator 
Church states: 

Why was the change made? The change was made because the Pentagon and 
the Administration did not want this automatic termination of their powers. 



258 

Now in the bill we have this very, very serious deficiency that per- 
mits the emergency to go on and on unless by a joint resolution of the 
Congress it is terminated. I think that is a basic deficiency. I think 
that it will aggravate the problem. It will continue the problem that 
is sought to be eliminated by this particular bill. After all, Mr. Chair- 
man, an emergency is by definition a short-term affair. We should not 
allow the President to declare an emergency and then allow that 
emergency to go on and on unless someone has the initiative in both 
Houses of Congress to terminate it. 

The President after the 30 days proposed in my amendment may 
once again proclaim the emergency, or Congress can extend the emer- 
gency. But in no wise should we have a very loose power residing in 
the President by which he can declare an emergency and this state of 
emergency will continue on and on until both Houses of Congress 
terminate it. 

In conclusion, I commend the subcommittee once again but state that 
that we have been relatively fortunate over the past 40 years not to 
have had abuses of this vast power that has been given to the President 
by the Congress. We have been very fortunate. Yet we recognized in 
the War Powers Act that we must very severely limit the power of 
the President to declare war, and I suggest that by amendments that 
I shall propose we will make this present piece of legislation as tight 
and as important and as protective of the rights of the Congress as 
it should be. 

The Chairmax. The time of the gentleman has expired. 

Mr. Moorhead of California. Mr. Chairman, I yield such time as he 
may consume to the gentleman from Ohio (Mr. Ashbrook). 

Mr. Ashbrook. Mr. Chairman, I rise in support of H.R. 3884. This 
legislation would — with certain specified exceptions — terminate all 
powers and authorities resulting from previously declared national 
emergencies. It would also establish procedures for the declaration, 
exercise of powers, and termination of future national emergencies. 

H.R. 3884 is certainly needed. Once declared, national emergencies 
seem to have a way of staying on the books. The Korean War emer- 
gency declared by President Truman, for example, is still in effect. So 
also is the 1933 declaration of President Roosevelt. 

It is time to finally bring these national emergencies to an end. Out- 
dated emergencies should not serve as the legal basis for new govern- 
mental actions. The potential for abuse is too great. The Government 
should operate through normal statutory procedures, not by emer- 
gency procedures which were designated for limited periods of time. 

H.R. 3884 would halt this practice. No longer could a declaration 
of national emergency be used to justify Government activity 20 to 40 
years after the crisis has passed. 

Not only would it repeal past national emergencies, it would estab- 
lish procedures on the declaration and termination of future emergen- 
cies. This would prevent reliance on long-passed emergencies from 
recurring in the years ahead. 

I urge the adoption of H.R. 3884. Government action on the basis 
of outdated national emergencies should be brought to a halt. 

Mr. Anderson of Illinois. Mr. Chairman, this Congress has often 
been chided for tacking the word "emergency" onto the title of nearly 
every major bill we have considered this year. A visitor to our gal- 



259 

! leries might be led to conclude that this is the emergency room of a 
hospital instead of the House Chamber. 

Although H.R. 3884 also contains the word "emergencies." being 
entitled the "National Emergencies Act.*' I think it is significant to 
note that for once we are not declaring yet another emergency, but 
instead are attempting to terminate some past emergencies, one of 
which dates back some 42 years. 

As if we did not have enough contemporary problems, crises and 
emergencies to worry about, this country is still living under four 
declared states of national emergency including the Roosevelt depres- 
sion emergency proclamation of 1933, the Truman Korean emergency 
proclamation of 1950. and the Nixon postal and economic emergency 
proclamations of 1970 and 1971 respectively. In addition, we know 
from the work of the Senate Special Committee on the Termination 
of National Emergency in the last Congress that there are some 470 
existing emergency statutes on the books. According to the Senate 
committee, these remain "a potential source of virtually unlimited 
power for a President should he choose to activate them." These poten- 
tial powers conferred upon the President include the right to seize 
property, organize and control the means of production, seize com- 
modities, assign military forces abroad, call reserve forces amounting 
to 2.5 million men to duty, institute martial law, seize and control all 
means of transportation, regulate all private enterprise, and restrict 
travel. 

The chairman and ranking Republican on the Special Senate Com- 
mittee, Senators Church and Mathias, issued a joint statement in Sep- 
tember of 1973 underscoring the inherent dangers in this vast array 
of standby emergency authority granted to the President. In their 
words : 

We cannot stress enough the warning contained in this catalog of emergency 
power statutes. The evident pattern in this accretion of power over a 40-year 
period is. in our view, symptomatic of what has occurred in law-making in all 
areas of our government. 

Tney went on to say. and I again quote : 

Unless Congress takes steps to strengthen its capacity to write the laws 
through the representative political process as the Constitution intended, then 
the unmistakable drift towards one-man government will continue. 

Mr. Chairman. I think it is important to observe that that statement 
was issued prior to the release of the so-called White House Water- 
gate transcripts and their chilling revelations about the abuse of Presi- 
dential power. 

The 93d Congress, to its credit, made immense strides in the reasser- 
tion of Congressional prerogatives through the enactment of the budget 
reform and war powers acts as well as the responsible excercise of its 
impeachment powers. The torch has now passed to this new Congress 
to continue the momentum in checking the potential abuse of Presi- 
dential powers and reestablishing the delicate balance of powers be- 
tween the great branches of our Government. 

Although the Senate last year passed a bill similar to this termi- 
nating national emergencies, time ran out before the House could 
complete action on the measure. I want to commend our Judiciary 
Committee, which distinguished itself in the last Congress, for making 
this legislation a priority item in this session. 



260 

One of the main complaints of the Church committee was the irre- 
sponsible approach the Congress has taken to past emergency legisla- 
tion. As Senators Church and Mathias put it : 

The record of Congressional performance is a poor one. These laws — in the 
main, drafted in the Executive branch — were passed hastily, without much con- 
sideration. Almost all of the laws made no provision for Congressional oversight 
nor do they provide a means for terminating the "temporary" delegated powers. 

H.R. 3884, which is based on the recommendations of the Church 
committee, is designed to insure that the Congress will play a more 
active, conscientious and continuing oversight role with respect to 
future declarations of national emergencies. For not only does it ter- 
minate existing states of emergency after two years, but it prescribes 
strict procedures for the declaration and reporting of future emer- 
gencies, and for periodic Congressional review and action on those 
declarations. 

First, the bill defines under what circumstances the President may 
declare a national emergency. Second, the bill requires that the proc- 
lamation be immediately transmitted to the Congress and published 
in the Federal Register. Third, the President may not exercise his 
authority under any emergency statutes under a state of national 
emergency unless he specifies which provisions he will be invoking 
in the proclamation or in subsequent Executive orders published in 
the Federal Register and transmitted to the Congress. Fourth, the 
Congress may terminate the national emergency at any time by pass- 
age of a concurrent resolution. In arty event, the Congress must con- 
sider whether the emergency should be terminated at periodic inter- 
vals of every six months. Sixth, the President must indicate to the 
Congress annually, and through the Federal Register, whether the 
emergency is still in effect. And seventh, the President may terminate 
the national emergency at any time by proclamation. 

Mr. Chairman, the bill contains certain other safeguards which I 
will not enumerate here. Suffice it to say, this legislation does institu- 
tionalize a very careful oversight procedure which shall insure that 
the Congress responsibly exercises its obligations with respect to any 
national emergency. 

It is my understanding that an amendment may be offered to pro- 
vide for the automatic termination of a national emergency after one 
year unless the President declares to the Congress at the end of that 
one-year period that the emergency is still in effect. Since the bill al- 
ready requires the President to make such annual declarations and 
forces the Congress to consider a termination semiannually, I q uestion 
the necessity of such an amendment. Moreover, I think it is far pref- 
erable to have the Congress take affirmative action in the event the 
President fails to comply with the reporting provisions, rather than 
simply permit the state of emergency to lapse without proper consid- 
eration and debate. 

In conclusion, Mr. Chairman, I strongly support this legislation as 
reported by the Judiciary Committee and urge its enactment. 

Mr. Fountain. Mr. Chairman, I rise in support of passage of H.R. 
3884, the National Emergencies Act now before the House. The worth- 
while purpose of this legislation is to terminate all powers and au- 
thorities which were given to the Executive branch during the past 
periods of national emergency and which are no longer needed. 



261 

During times of national crisis, like the Korean conflict or the eco- 
nomic difficulties encountered in the Great Depression of the 1930's, 
the Congress enacted more than 470 significant statutes delegating 
powers to the President, powers which had been the prerogative of 
the national legislature since the beginning of the Republic. 

Generally speaking, there was good reason for the Congress, in the 
course of its legislative work, to delegate powers during times of na- 
tional emergency. Problems have arisen, however, in the granting of 
various powers to the Chief Executive during previous emergencies 
because no mechanisms were set up to terminate the exercise of these 
delegated powers once the crisis had passed. 

Ironically, the Executive branch still carries on some of its normal 
activities under authority accumulated during the designated emer- 
gencies of 1933, 1950, 1970 and 1971. Clearly the particular emergen- 
cies of these years have passed. Yet, no defined means of terminating or 
renouncing those grants of emergency power exist. This is a situation 
we must change, Mr. Chairman. 

The legislation under consideration today would require the Chief 
Executive to specify the powers and emergency statutes he will utilize 
in the exercise of emergency powers, and it would require the Chief 
Executive to maintain a file of orders, rules, and regulations used in 
the exercise of the emergency authority. Furthermore, the statute 
would require that such information must be transmitted to the Con- 
gress, along with a report of expenditures directly related to the ex- 
ercise of those emergency powers, at six-month intervals. 

In conclusion, let me say, I support passage of this measure on the 
simple proposition that H.E. 3884 will enable the Congress to keep 
an active watch on the growth of Presidential power, without curtail- 
ing the President's ability to respond in times of national crisis. 

Currently, the President can. if he wishes, assume great control over 
our personal lives, the public life of our Nation, and over our econom- 
ics and political affairs, using the many emergency powers which have 
not been formally terminated. Such vast powers are simply not needed 
— especially obsolete laws designed for emergencies which have long 
since passed. Consequently, our task is to assist in maintaining the 
balance of liberties and freedoms embodied in the Constitution by re- 
pealing unneedod, outmoded emergency powers. 

Passage of this measure would restore that balance without hinder- 
ing any future exercise of Presidential power in times of national 
emergency, however unforeseen or sudden. 

In a word, this measure would preserve the Executive's authority to 
assume great and awesome responsibilities in times of national 
emergency, while permitting the Congress to discharge its Constitu- 
tional responsibility to check the potential exercise of power to the dis- 
advantage of the separation of powers and civil liberties of the 
American people. 

Mr. Chairman, legislation of this kind is long overdue. I therefore 
urge passage of H.P. 3884. 

Mr. Cleveland. Mr. Chairman. I rise in support of H.E. 3884 as 
a long-overdue reform to redress the imbalance of authority between 
the Executive and Legislative branches and in the interest of restoring 
orderly process in government. After some 40 years of subjecting the 



262 

country to .government by executive fiat in the name of one type of 
emergency or other, it is time to call a halt. The time has come for 
reexamination and culling out of the nearly 500 provisions of law 
involved in one way or another with the existence of a declared state 
of emergency. 

The other body, in which this legislation originated, and the Com- 
mittee on the Judiciary, which brings us an amended bill, are to be 
commended for their initiative in shaping this reform measure. 

It would terminate — with certain justifiable exceptions — emergency 
powers and authorities — some going back to 1933 — within two years of 
enactment and would establish a system for both the declaration and 
termination of emergencies in the future. 

At the same time, it will restore and strengthen Congressional re- 
sponsibility for regulatory-type activities which, because of their 
origin in emergencies of the past, tend to impinge on individual liber- 
ties and economic freedoms — which, incidentally, I happen to regard 
as inherently related. 

While I support this legislation, I also wish to take this occasion to 
observe that it is somewhat negative in its thrust. The Congress in 
essence is withdrawing powers which it has delegated implicitly or 
explicitly to the Executive and allowed to remain there long after the 
original justification passed into history. 



Our failure to act in the past is directly related to an infatuation 
with the doctrine of the "activist" Presidency which flourished not 
only in academic circles, but in the Congress itself for decades. 

I doubt that I am alone in my conviction that this concept of the 
Presidency inflated the office and those who have held it in recent ad- 
ministrations — and I emphasize my use of the plural — and spurred 
the abuses of power inevitably and ultimately associated with its ex- 
cessive concentration. 

So I suppose that to some of my colleagues this legislation has its 
penitential aspects. But I also would like to think that this bill goes 
farther than that and like, for example, war powers legislation and 
other structural and procedural reforms, it represents another step in 
Congressional efforts to regain control over the direction and growth 
of government at the Federal level. 

In this connection, I would hope that we would pursue the logic of 
this legislation and be wary of further actions which would move us 
in precisely the opposite direction. I refer to a continuing tendency to 
seek salvation from the ills that beset society by the creation of new 
programs and new agencies to administer them ; by passing new pieces 
of regulatory legislation inevitably followed by massive volumes of 
administrative regulation. 

LARGER ISSUE BIG GOVERNMENT 

We cannot have it both ways. This bill before us today is designed 
to curb abuses or the potential abuses of power triggered by Executive 
declarations of emergency. Thus the focus is the Presidency and right- 
ly so. But I have become increasingly convinced in recent years that 



263 

we create the same potential for arbitrary action and plain old bureau- 
cratic red-tape, delays and mismanagement — bad government — when 
we add on to the agencies downtown additional layers of discretionary 
authority. My concern, again, is similar with the Executive branch. 

The results are much the same, a breakdown of responsive govern- 
ment and increasing frustration in our efforts, as Members of the most 
representative House of the Legislative branch, to respond when the 
anonymous technicians who draft regulations and the more innovative 
members of the judiciary get their licks in. 

This situation, as much as any of the more widely publicized infirmi- 
ties of the traditional independent regulatory agencies, contributes to 
the growing public concern over excessive regulation by Government. 

Let us by all means pass this bill. But then let us also pursue our 
legislative responsibilities with a greater awareness of the practical 
limitations on our ability to reform the world with Federal resources 
and Federal regulation. 

Strengthened legislative oversight backed up by a stronger inclina- 
tion to move by legislative enactment when the Executive or the courts 
act to frustrate or distort the intent of Congress — this is the practical 
alternative available to the Congress. If pursued in the same spirit 
that motivates our action on this bill, this can do much to improve the 
functioning of Government and its claim to the confidence of the 
public. 

Mr. Moorhead of California. Mr. Chairman, I have no further re- 
quest for time. 

Mr. Flowers. Mr. Chairman, I have no further request for time. 

The Chairman. The Clerk will read. 

The Clerk read as follows : 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That this Act may be cited as the "National 
Emergencies Act". 

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES 

Sec. 101. (a) All powers and authorities possessed by the President, any other 
officer or employee of the Federal Government, or any Executive agency, as defined 
in section 105 of Title 5. United States Code, as a result of the existence of any 
declaration of national emergency in effect on the date of enactment of this Aft 
are terminated one year from the date of such enactment. Such termination shall 
not affect — 

(1) any action taken or proceeding pending not finally concluded or deter- 
mined on such date ; 

(2) any action or proceeding based on any act committed prior to such date; 
or 

(3) any right or duties that matured or penalties that were incurred prior to 
such date. 

(b) For the purpose of this section, the words "any national emergency in 
effect" means a general declaration of emergency made by the President pursuant 
to a statute authorizing him to declare a national emergency. 

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES 

Sec. 201. (a) In the event the President finds that a proclamation of a national 
emergency is essential to the preservation, protection and defense of the Con- 
stitution or to the common defense, safety or well-being of the territory or people 
of the United States, the President is authorized to proclaim the existence of a 
national emergency. Such proclamation shall immediately be transmitted to the 
Congress and published in the Federal Register. 



66-474 O - 76 - 18 



264 

(b) Any provisions of law conferring powers and authorities to be exercised 
during a national emergency shall be effective and remain in effect (1) only when 
the President (in accordance with subsection (a) of this section), specifically 
declares a national emergency, and (2) only in accordance with this Act. No law 
enacted after the date of enactment of this Act shall supersede this title unless 
it does so in specific terms, referring to this title, and declaring that the new law 
supersedes the provisions of this title. 

Sec. 202. (a) Any national emergency declared by the President in accordance 
with this title shall terminate if — 

(1) Congress terminates the emergency by concurrent resolution; or 

(2) The President issues a proclamation terminating the emergency. 

At the end of each year following the declaration of an emergency which is still in 
effect, the President shall publish in the Federal Register and transmit to the Con- 
gress a notice stating that the emergency is still in effect. Any national emergency 
declared by the President shall be terminated on the date specified in any concur- 
rent resolution referred to in clause (1) of this subsection, and any powers or 
authorities exercised by reason of said emergency shall cease to be exercised after 
such specified date, except that such termination shall not affect — 

(A) any action taken or proceeding pending not finally concluded or deter- 
mined on such date ; 

(B) any action or proceeding based on any act committed prior to such date ; or 

(C) any rights or duties that matured or penalties that were incurred prior 
to such date. 

(b) Not laler than six months after a national emergency is declared, and 
not later than the end of each six-month period thereafter that such emergency 
continues, each House of Congress shall meet to consider a vote on a concurrent 
resolution to determine whether that emergency shall be terminated. 

(c)(1)(A) A concurrent resolution to terminate a national emergency de- 
clared by the President shall be referred to the appropriate committee of the 
House of Representatives or the Senate, as the case may be. One such concurrent 
resolution shall be reported out by such committee together with its recommenda- 
tions within fifteen calendar days, unless such House shall otherwise determine 
by the yeas and nays. 

(2) Any concurrent resolution so reported shall become the pending business 
of the House in question (in the case of the Senate the time for debate shall be 
equally divided between the proponents and the opponents) and shall be voted 
on within three calendar days thereafter, unless such House shall otherwise de- 
termine by yeas and nays. 

(3) Such a concurrent resolution passed by one House shall be referred to the 
appropriate committee of the other House and shall be reported out by such com- 
mittee together with its recommendations within fifteen calendar days and shall 
thereupon become the pending business of such House and shall be voted upon 
within three calendar days, unless such House shall otherwise determine by 
yeas and nays. 

(4) In the case of any disagreement between the two Houses of Congress with 
respect to a concurrent resolution passed by both Houses, conferees shall be 
promptly appointed and the committee of conference shall make and file a report 
with respect to such concurrent resolution within six calendar days after the legis- 
lation is referred to the committee of conference. Notwithstanding any rule in 
either House concerning the printing of conference reports in the Record or 
concerning any delay in the consideration of such reports, such report shall be 
acted on by both Houses not later than six calendar days after the conference 
report is filed. In the event the conferees are unable to agree within forty-eight 
hours, they shall report back to their respective Houses in disagreement. 

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and 
section 602(b) of this Act are enacted by Congress — 

(A) as an exercise of the rulemaking power of the Senate and the House of 
Representatives, respectively, and as such they are deemed a part of the rules 
of each House, respectively, but applicable only with respect to the procedure 
to be followed in the House in the case of resolutions described by this subsection ; 
and they supersede other rules only to the extent that they are inconsistent there- 
with ; and 

(B) with full recognition of the constitutional right of either House to change 
the rules (so far as relating to the procedure of that House) at any time, in the 
same manner, and to the same extent as in the case of any other rule of that 
House. 



265 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec. 301. Whenever Congress declares war, any provisions of law conferring 
powers and authorities to be exercised during time of war shall be effective from 
the date of such declaration. 

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES 

Sec 401. When the President declares a national emergency no powers or 
authorities made available by statute for use in the event of an emergency shall 
be exercised unless and until the President specifies the provisions of law under 
which he proposes that he, or other officers, will act. Such specifications may be 
made either in the declaration of a national emergency, or by one or more con- 
temporaneous or subsequent Executive orders published in the Federal Register 
and transmitted to the Congress. 

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS OF 

THE PRESIDENT 

Sec 501. (a) When the President declares a national emergency, or Congress 
declares war, the President shall be responsible for maintaining a tile and index 
of all significant orders of the President, including Executive orders and procla- 
mations, and each such Executive agency shall maintain a file and index of all 
rules and regulations, issued during such emergency or war issued pursuant to 
such declarations. 

(b) All such significant orders of the President, including Executive orders, 
and such rules and regulations shall be transmitted to the Congress promptly 
under means to assure confidentiality where appropriate. 

(c) When the President declares a national emergency or Congress declares 
war, the President shall transmit to Congress, within thirty days after the end 
of each three month period after such declaration, a report on the total expendi- 
tures incurred by the United States Government during such three-month period 
which are directly attributable to the exercise of powers and authorities con- 
ferred by such declaration. Not later than thirty days after the termination of 
each such emergency or war, the President shall transmit a final report on all 
such expenditures. 

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY 
POWER AND OTHER STATUTES 

Sec 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 
1481 (a)) is amended — 

(1) at the end of paragraph (9), by striking out "; or" and inserting in lieu 
thereof a period ; and 

(2) by striking out paragraph (10). 

(b) Section 2667(b) of Title 10 of the United States Code is amended— 

(1) by inserting "and" at the end of paragraph (3) ; 

(2) by striking out paragraph (4) ; and 

(3) by redesignating paragraph (5) as (4). 

(c) The joint resolution entitled "Joint resolution to authorize the temporary 
continuation of regulation of consumer credit", approved August 8, 1947 (12 
U.S.C. 249), is repeated. 

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (10 U.S.C. 
831d(m)) is repealed. 

(e) Section 1382 of Title 18, United States Code, is repealed. 

(f ) Section 6 of the Act entitled "An Act to amend the Public Health Service 
Act in regard to certain matters of personnel and administration, and for other 
purposes", approved February 28, 1948, is amended by striking out subsections 
(b), (c), (d), (e), and (f ) 42 (U.S.C. 211b). 

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742) 
is repealed. 

(h) This section shall not affect — 

( 1 ) any action taken or proceeding pending not finally concluded or determined 
at the time of repeal ; 

(2) any action or proceeding based on any act committed prior to repeal ; or 



266 

(3) any rights or duties that matured or penalties that were incurred prior to 
repeal. 

Sec. 602 (a) The provisions of this Act shall not apply to the following pro- 
visions of law, the powers and authorities conferred thereby, and actions taken 
thereunder : 

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95(a) ; 
50U.S.C. App. 5(b)) ; 

(2) Section 673 of Title 10, United States Code; 

(3) Act of April 28, 1942 (4 U.S.C. 278b) ; 

(4) An act of June 30, 1949 (41 U.S.C. 252) ; 

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ; 

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15). ; 

(b) Each committee of the House of Representatives and the Senate having 
jurisdiction with respect to any provision of law referred to in subsection 
(a) (1) (6) of this section shall make a complete study and investigation con- 
cerning that provision of law and make a report, including any recommendations 
and proposed revisions it may have, to its respective House of Congress within 
two hundred and seventy days after the date of enactment of this Act. 

Mr. Flowers (during the reading). Mr. Chairman, I ask unani- 
mous consent that the bill be considered as read, printed in the Record, 
and open to amendment at an} 7 point. 

The Chairman. Is there objection to the request of the gentleman 
from Alabama ? 

There was no objection. 

COMMITTEE AMENDMENTS 

The Chairman. The Clerk will report the first committee 
amendment. 

Mr. Flowers. Mr. Chairman, I ask unanimous consent that all the 
committee amendments be considered en bloc and that reading of the 
committee amendments be dispensed with and that they be printed in 
the Record. 

The Chairman. Is there objection to the request of the gentleman 
from Alabama? 

There was no objection. 

The committee amendments are as follows : 

Page 2, line 2, strike "one year" and insert "two years". 

Page 2, lines 13 and 14 strike "pursuant to a statute authorizing him to declare 
a national emergency". 

Page 3, line 21, after "clause (1)". insert "or on the date specified in a procla- 
mation by the President terminating the emergency as provided in clause (2)". 

Page 6, strike all of lines 14, 15, 16, 17, 18, and 19. 

Page 6. line 20, after "TITLE", strike "IV" and insert "III". 

Page 6, line 22, after "SEC", strike "401" and insert "301". 

Page 7, line 6, after "TITLE", strike "V" and insert "IV". 

Page 7, line 8, after "Sec", strike "501" and insert "401". 

Page 7, line 12, after "each", strike "such". 

Page 7, line 22, after "within" strike "thirty" and insert "ninety", and after 
"each" strike "three-" and insert "six-". 

Page 7, line 25, strike "three-month" and insert "six-month". 

Page 8, line 2, strike "thirty" and insert "ninety". 

Page 8, line 5, after "TITLE", strike "VI" and insert "V". 

Page 8, line 8, after "Sec", strike "601" and insert "501". 

Page 8, line 24, after "Act of 1933" insert "as amended". 

Page 9, line 18, after "Sec", strike "602" and insert "502". 

Page 9, line 22, strike "95(a)" and insert "95a". 

Page 9, strike all of line 23. 

Page 9, line 24, strike "(3)" and insert "(2)". 

Page 9, line 25, strike "(4)" and insert "(3)". 



267 

Page 10, line 1, strike "(5)" and insert ''(4)". 

Page 10, line 3, strike "(6)" and insert "(5)". 

Page 10, line 4, at the end of the sentence, strike the period and insert a 
semi-colon. 

Page 10, after line 4 : Insert : 

"(6) Public Law 85-804 (Act of Aug. 28, 1958, 72 Stat. 972; 50 U.S.C. 1431- 
1435) ; 

"(7) Section 2304(a) (1) of Title 10. United States Code; 

"(8) Sections 3313, 6386(c) and 8313 of Title 10, United States Code." 

Page 10, line 7, strike "(1) (6)". 

The Chairman. The question is on the committee amendments. 
The committee amendments were agreed to. 

AMENDMENT OFFERED BY MR. MATSUNAGA 

Mr. Matstjnaga. Mr. Chairman, I offer an amendment. 
The Clerk read as follow- : 

Amendment offered by Mr. Matsunaga : On page 3, line 16, strike the sentence 
beginning "At the end" ; 
And on page 6, immediately after line 15. insert the following new subsection : 
"(d) Any national emergency declared by the President in accordance with 
this title, and not otherwise previously terminated, shall terminate on the anni- 
versary of the declaration of that emergency if, within the 90-day period prior to 
each anniversary date, the President does not publish in the Federal Register 
and transmit to the Congress a notice stating that the emergency is still in effect." 

Mr. Matsunaga. Mr. Chairman, as the author of Public Law 92- 
128, which prohibits the internment of any U.S. resident under au- 
thority of a national emergency. I stand fully in support of legislation 
to provide for a national and deliberate review of declared national 
emergencies. This is the thrust of H.R. 3884 and I commend the Com- 
mittee on the Judiciary. Chairman Kodino and especially the chair- 
man of the subcommittee, Mr. Flower-, for bringing this legislation to 
the floor today. The bill will clear up the muddled situation which 
exists today relative to the duration of declared national emergencies. 

My only concern about U.K. 3884 is with it> provision that requires 
the President to redeclare any national emergency every year by pub- 
lishing in the Federal Register and transmitting to Congress a notice 
stating that the emergency is still in effect. By failing to provide for 
any direct sanction in the event that the President fails to comply 
with this notice provision, the bill encourages Executive neglect, which 
may well result in frustration when Congress attempts to enforce this 
requirement. As reported. U.K. 3884 also fails to state the consequences 
of the President's failure to comply with the requirements of publica- 
tion and transmittal of notice. The question as to whether or not the 
declared national emergency continues is left unanswered. 

My amendment would provide that if no notice of a continuing 
national emergency is transmitted to the Congress and printed in the 
Federal Register in the manner specified in the bill, the emergency 
would automatically terminate on its next anniversary date. My 
amendment would provide another method by which declared emer- 
gencies could be terminated, in addition to the two methods provided 
in the committee bill, but only in a technical sense, for the President 
would retain the power to redeclare the emergency by a simple pub- 
lication in the Federal Register and transmittal of notice to the 
Congress. 



268 

If my amendment is adopted, Members of Congress, Executive agen- 
cies, and the public desiring information on the status of any de- 
clared national emergency, may look to a single publication, the 
Federal Register, in the secure knowledge that any declared emergency 
over a year old has been terminated if not listed in this publication. 

Mr. Chairman, my amendment would clearly serve the intended 
purpose of H.K. 3884, and I urge its adoption. 

Mr. Flowers. Mr. Chairman, would the gentleman yield for a 
comment ? 

Mr. Matsunaga. I am happy to yield to the distinguished gentle- 
man from Alabama, chairman of the subcommittee. 

Mr. Flowers. Mr. Chairman, I appreciate the gentleman's com- 
ment. I certainly did not want to cut the gentleman short, particularly 
in the earlier part of the gentleman's statement here. 

I would say from this Member's point of view it is a highly accepta- 
ble amendment. I think probably it does add something that needs to 
be added to the legislation that might not be taken care of quite as 
cleanly and as properly through the regular six-month requirement of 
the concurrent resolution to terminate the emergency. It would be 
undoubtedly a better process to have, as the gentleman suggests in his 
amendment. 

Mr. Chairman, as far as the Members on this side are concerned, we 
will accept the amendment. 

Mr. Matsunaga. Mr. Chairman, I thank the gentleman from Ala- 
bama. I believe the gentleman from Alabama has exercised keen in- 
sight into the pending matter. 

Mr. Moorhead of California. Mr. Chairman, will the gentleman 
yield? 

Mr. Matsuxaga. I am happy to yield to the distinguished gentle- 
man from California. 

Mr. Moorhead of California. Mr. Chairman, we will also accept the 
amendment. 

Mr. Matsunaga. I thank the gentleman from California. His co- 
operation as minority floor manager has been excellent and very much 
appreciated. 

Mr. Danielson. Mr. Chairman, will the gentleman yield ? 

Mr. Matsunaga. I most gladly yield to the gentleman from 
California. 

Mr. Danielson. Mr. Chairman, I want to say I will support the 
amendment of the gentleman from Hawaii. I think this self-destruct 
provision of the Matsunaga amendment will add a good deal to the bill 
in that emergencies will not just go on and on because were are too 
busy to act upon them. It is a very wholesome amendment. It will im- 
prove the other beneficial portions of the bill. 

Mr. Matsunaga. Mr. Chairman, if the gentleman will yield, I thank 
the gentleman for his contribution and for his keen insight. With his 
support, I know now there is no "mission impossible." 

Mr. Danielson. Mr. Chairman, I think the world should remember 
this as the Matsunaga "self-destruct amendment." 

The Chairman. The question is on the amendment offered by the 
gentleman from Hawaii (Mr. Matsunaga). 

The amendment was agreed to. 



269 

AMENDMENT OFFERED BY MR. DRINAN 

Mr. Drinan. Mr. Chairman, I offer an amendment. 
The Clerk read as follows : 

Amendment offered by Mr. Drinan : Page 3, strike out the period at the end 
of line 15 and insert in lieu thereof the following : " ; or 

"(3) thirty calendar days elapse following the declaration of an emergency 
unless Congress (A) has authorized by concurrent resolution the extension of 
such an emergency to a date certain, or (B) is physically unable to meet as a re- 
sult of an armed attack upon the United States." 

Mr. Drinan. Air. Chairman, we have to decide here today a very 
crucial question. Are we going to allow this vast emergency power of 
the President to be continued in the way that it has been done over the 
last 40 years? This bill is good, but it is imperfect. My amendment 
simply states that the President can declare an emergency, but an 
emergency in the nature of things is a short thing. It is something 
urgent. 

Consequently, my amendment states that after 30 days this state of 
emergency lapses unless the Congress by concurrent resolution extends 
the emergency to a date certain. That would be simple to do at the 
request of the President. We are not tying his hands. At the same time, 
we are in control of this vast reservoir of power that is conferred upon 
the President. 

My amendment also provides that the emergency can continue if the 
Congress is physically unable to meet as a result of an armed attack on 
the United States. This once again tracks the War Powers Resolution 
where we stated that the President, under the Constitution, under our 
laws, has only those powers that we, the Congress, specifically confer 
upon him. 

Under my amendment when we confer the power to declare an emer- 
gency, we state that this power can be exercised for one month, and for 
one month only, and that at the end of that 30 days it terminates unless 
the Congress, both bodies, by concurrent resolution extend it. This obvi- 
ously gives us a further way of protecting the country from the misuse 
and the abuses of the vast, inherent emergency powers of the President. 

I think this amendment would improve the bill. I think furthermore 
that this amendment coincides with the original intent of the Senate 
Special Committee. Senator Frank Church stated in testimony before 
this subcommittee, that when they brought the bill out, they clearly 
intended that the emergency power would exist only during a specific 
period of 30 or 45 or 60 days. It was the Administration that caused the 
Church Special Committee to change its view and to state that the 
emergency goes on and on. 

With the amendment adopted which was offered by the gentleman 
from Hawaii (Mr. Matsunaga), I think that the dilemma is pointed up 
even more sharply : that we cannot wait for an entire year. There is no 
reason why we should legislate that a whole year can go by in which 
these emergency powers are continued unless the Congress acts, or un- 
less the President takes affirmative action. 

The proposal I am making, Mr. Chairman, tidies up this bill. It 
states exactly what we, as the Congress, should do with this vast emer- 
gency power. In all candor, we have abused our powers in this area over 
the past 40 years. Since 1933 there have been some 470 emergency decla- 



270 

rations, all there in the law. If we are going to continue emergency 
powers in the President — as we must — we must very carefully state 
that he has that power for 30 days and for 30 days only unless, by con- 
current resolution, we seek an extension of that particular state of 
emergency. 

Mr. Chairman, I urge the Members to vote for this amendment. It 
would improve this Act. It would reaffirm the Congressional powers 
without inhibiting the powers of the President. 

Mr. Flowers. Mr. Chairman, I rise in opposition to the amendment 
of the gentleman from Massachusetts. It seems to me, Mr. Chairman, 
that what we have here in the bill is a perfectly balanced, coordinated 
approach to a problem. If we adopted the amendment as the gentleman 
from Massachusetts would have us do by his amendment, we would be 
tilting substantially in favor of, I think, enlarging the problem of 
Executive action while not really giving the Congress what this amend- 
ment seeks to do. 

Let us remember what the bill provides in section 202(a) , subsection 
(1), "Congress terminates the emergency by concurrent resolution; or 

(2) the President issues a proclamation terminating the 
emergency." 

In addition thereto, there is a written-in proviso in the legislation 
that at each six-month period after the declaration of an emergency, 
the Congress — that is, both the House and the Senate — must vote on the 
issue whether or not to continue the emergency. That seems to me to be 
an adequate safeguard here. 

The gentleman's amendment, I must say, contemplates that the Con- 
gress will not be responsible. I cannot find it in myself to declare that 
for this or any future Congress. Furthermore, I do not think, Mr. 
Chairman, there is an essential parallel between this resolution and the 
War Powers Act. 

It is not contemplated under any of the emergency powers that are 
conferred upon the President through various pieces of legislation that 
we will be taken into a war and put American men and women overseas 
fighting a war, as does the War Powers Act. 

We are talking about mostly technical matters. The objective of this 
legislation is to either wipe the slate clean or to allow a process whereby 
the slate can be wiped clean in the future as to these declared emer- 
gencies and the powers activated thereunder. 

Therefore, Mr. Chairman, I do oppose the gentleman's amendment 
and I ask my colleagues to support us in voting down the amendment. 

Mr. Mazzoli. Mr. Chairman, will the gentleman yield? 

Mr. Flowers. I yield to the gentleman from Kentucky. 

Mr. Mazzoli. I thank the gentleman for yielding. I appreciate what 
the gentleman said, and I concur in his statement. I oppose the amend- 
ment offered by the gentleman from Massachusetts. 

Is it not correct, I ask the Chairman, that during our hearings and 
our discussions it was stated that the gentlemen from the other body, 
in an effort to get a piece of legislation like this on the books, urged us 
not to make any changes in order that the arrangements made with the 
Administration could go forward and this bill could be signed ? 

Mr. Flowers. The gentleman is correct. A great deal of work was 
done in the other body on this legislation. We worked, I think, hard 
and diligently on it, and in a large part we did accept what the other 



271 

body did. It was not because we were rubberstamping the other body, 
but because it was good work. The compromise was a good piece of leg- 
islation. For that reason, I think we should leave this particular pro- 
vision intact. 

Mr. Mazzoli. If the gentleman will yield further, it would seem to 
me. Mr. Chairman, that unless there is some real, profound need for 
making these changes, we should leave the legislation the way it is. 

Mr. Flowers. I thank the gentleman. 

Mr. Conyers. Mr. Chairman, I move to strike the requisite number 
of words. 

Mr. Chairman, I do not know if I understood, by the previous col- 
loquy with the distinguished chairman of the subcommittee, whether 
or not we have received Senate instructions not to tamper with this 
legislation. If that is the effect of the discussion, I suppose it is clearly 
not relevant to the deliberations of 435 Members. But as I see this 
amendment — and I would like to raise this question with my colleagues 
on the subcommittee — the apparent thrust of this amendment is to de- 
termine whether an emergency under this legislation is to exist for one 
year or 30 days. I think that is an important enough question with 
which some of us might have a different view. I, of course, would be 
one of those who would like to limit the emergency powers of the 
Executive Branch to as short a time as is reasonable, and 30 days seems 
reasonable to me. I suppose that the Congress could, as the chairman 
of the subcommittee has pointed out, at any time operate within that 
one-year period, but I think the burden more properly in this instance 
should rest upon the Executive branch in requesting an emergency 
situation to exist. 

I would say that this is a reasonable issue that has been framed by 
our colleague from Massachusetts. Would the gentleman not agree to 
that? 

Mr. Flowers. Mr. Chairman, will the gentleman yield? 

Mr. Cox vers. I will yield to the gentleman. 

Mr. Flowers. Xo, I would not agree to that. I think the gentleman's 
amendment contemplates that the Congress must act within 30 days 
in order to continue the emergency powers. Just as the gentleman said, 
he is apparently wary that the Congress would not act to terminate 
emergency powers. There are many impediments to the Congress act- 
ing on anything within a 30-day period. For instance we have just had 
a 30-day recess in the month of August. We have many reasons why I 
think we should not tie the Administration's hands with this sort of 
provision. 

Mr. Coxyers. Would the gentleman not agree with me that if we 
were in a state of emergency and wished to terminate it and we are on 
a 30-day recess, we would probably be able to rise to the occasion? 

Mr. Flowers. Mi-. Chairman, I will say to the gentleman, if he will 
yield further, that I would hope we could rise to the occasion, but I 
would not want to say for sure we would. I do not think I could say, 
nor could he. 

I think we are really talking about such a minor part of this legisla- 
tion that the language here takes care of what the gentleman is ap- 
parently concerned about. We are not talking about extending this 
thing ad infinitum : we are talking about only a short period of time. 



272 

Mr. Coxyers. Mr. Chairman, if my friend, the gentleman from Ala- 
bama (Mr. Flowers), is not certain whether the Congress in recess 
would be able to come back to terminate an emergency, I think that 
is the best stated case for this amendment and the best reason why 
either of us who support it would offer it. 

Mr. Mazzoli. Mr. Chairman, will the gentleman yield? 

Mr. Coxyers. I yield to my friend, the gentleman from Kentucky. 

Mr. Mazzoli. Mr. Chairman, I thank the gentleman for yielding. 

I have been very interested in this conversation. I think this really 
goes back to our discussions concerning the War Powers Act. The 
House was divided on the question in this case here of whether the pro- 
visions of the War Powers Act should be brought in upon the action 
of Congress or upon its inaction. 

Many of us felt that the inaction of Congress was an inappropriate 
way to show our displeasure at the pursuit of some international ad- 
venture involving American Armed Forces ; others felt that was the 
appropriate way. because of the parliamentary problems involved, that 
inaction was the proper way to display our opposition. 

Here in the subcommittee we came to this same philosophical split. 
We in the subcommittee eventually went along with the view that it 
should depend upon Congressional action rather than inaction, as the 
gentleman from Massachusetts (Mr. Drinan) would suggest. 

Mr. Coxyers. But, Mr. Chairman, I think this question raised by 
the amendment turns on whether an emergency should be constituted 
within 30 days or within 12 months. I think that is a reasonable basis 
for our position. 

Mr. Mazzoli. Mr. Chairman, if the gentleman will yield further, I 
think not in any case does it depend on whether the Congress should 
take action in 30 days or in 12 months under the present bill. There 
is nothing that prevents us from taking action. 

Mr. Coxyers. I realize that, but we are trying to define the time 
period. 

Mr. Drixax. Mr. Chairman. I make the point of order that a quorum 
is not present. 

The Chairmax. Evidently a quorum is not present. 

The Chair announces that he will vacate proceedings under the call 
when a quorum of the committee appears. 

Members will record their presence by electronic device. 

The call was taken by electronic device. 

QUORUM CALL VACATED 

The Chairman. One hundred Members have appeared. A quorum 
of the Committee of the Whole is present. Pursuant to rule XXIII. 
clause 2. further proceedings under the call shall be considered as 
vacated. 

The committee will resume its business. 

Mr. Moorehead of California. Mr. Chairman. I move to strike the 
requisite number of words. 

Mr. Chairman. I rise in opposition to this amendment. I think in the 
bill that we have before us there are adequate opportunities given to 
Congress to terminate a national emergency. Congress can terminate a 
declared national emergency at any point, in one day. or in ?>P)5 days, or 



273 

at any time they desire to do so by a vote of both Houses of the Con- 
gress to terminate a national emergency. 

Congress is required to review a national emergency after nine 
months and it would automatically end after a year if the Congress did 
not find that it was still necessary to retain it. 

We have passed the Matsunaga amendment which puts extra pres- 
sure on the President and the Executive branch to justify an 
emergency. 

This amendment, however, that is proposed by the gentleman from 
Massachusetts (Mr. Drinan) would terminate an emergency 30 days 
after it was declared if either or both Houses of the Congress had not 
been able to get togethei to pass a resolution supporting the emergency. 

All of us know that the Senate many times is tied up in filibusters or 
it is tied up on other issues and we in the House also get tied up on 
major bills that we are considering. Sometimes we go on recess. It is 
unrealistic to think we can run our Government in such a way that 
one or both Houses of the Congress could terminate a national emer- 
gency with absolutely no action whatsoever. 

I think the proposed amendment is a very dangerous amendment. 
I think it would do an injustice to the purpose we have before us. I 
would ask that the amendment be defeated. 

Mr. Drixax. Mr. Chairman, will the gentleman yield ? 

Mr. Mooriiead of California. I yield to the gentleman from Massa- 
chusetts. 

Mr. Drtntan. Mr. Chairman, would the gentleman from California 
spell out why we should have a national emergency at all. where the 
President unilaterally has exerted a power to do extraordinary things'? 
Should we not state that it i.- an extraordinary thing when he is exer- 
cising unspecified powers \ Should we not say that such powers which 
lie assumes, then, should terminate within 3D days unless we. the law- 
makers of the nation, specifically and affirmatively give the President 
a renewal of that power \ 

Mr. Moorhead of California. In this particular legislation we are 
telling the President that he must designate those powers that he is 
going to use under a declaration of a national emergency. Congress 
has given the President certain authority to act under emergency 
situations, and the President triggers specifically the laws that this 
Congress itself has passed on when he declares a national emergency. I 
know that there are other unspecified powers that a President under 
the Constitution can trigger, but most of the powers we are involved 
with here come out of Congressional acts. 

Unless there is a positive action on the part of the Congress stating 
that there is no emergency or that they are not terminating the 
emergency. I do not believe the act of Congress should be — 

Mr. Drixax. If the gentleman will yield again, under the six-months 
provision as set forth in the bill, the burden is on us to state that the 
President should not be exercising these powers. It seems to me that 
the burden should always be on the President, and my amendment 
seeks to place it on the President. It states that if he exercises these 
emergency, extraordinary, most unusual, powers, then the exercise of 
those powers terminates automatically after 30 days, unless we in the 
Congress affirmatively extend them. But under the six-months provi- 



274 

sion, if the Senate fails, and if the House passes it, then we have no 
way of terminating that particular emergency. It could go on for years 
and years. 

Mr. Moorhead of California. We can terminate any emergency at 
any time with a vote of both Houses of Congress. 

Mr. Drinan. But in the nature of things, that puts the burden on us, 
and the burden should not be on us. We gave, and the Congress his- 
torically has given, emergency powers for a very short period of time, 
for something unforeseen and unprecedented, where the President has 
to act in an unusual emergency situation. We have been lucky over the 
last 40 years that Presidents have not very often abused those powers, 
and now is the hour of the first curbing of this emergency power. 

The Chairman. The time of the gentleman has expired. 

(At the request of Mr. Flowers, and by unanimous consent, Mr. 
Moorhead of California was allowed to proceed for 1 additional 
minute.) 

Mr. Flower. Mr. Chairman, will the gentleman yield? 

Mr. Moorhead of California. I yield to the gentleman from 
Alabama, 

Mr. Flowers. I thank the gentleman for yielding. 

The basic problem here is that the gentleman from Massachusetts 
insists on a 30-day period, and the bill has by operation a six-months 
period in which the Congress has got to act on it. If we want to stay 
with the present situation, which most of us seem to agree is not a good 
situation, while we have in the legislation basically a compromise posi- 
tion which recognizes the Legislative branch's and the Executive 
branch's peculiar problems, if we want to give it all up in order to try 
to have this 30-day period, then that is what we should do. However, 
I do not think that is what a majority of the Members here want to 
do. I think we have a good measure here, a good measure that works 
to everybody's advantage, and so I think we ought to go with it. 

The Chairman. The time of the gentleman has expired. 

Mr. John L. Burton. Mr. Chairman, I move to strike the requisite 
number of words. 

Mr. Chairman, I would like to direct a question, if I could, to the 
proposer of the amendment. I believe that there is a great deal of merit 
in the point of view that he has expressed concerning the entire proce- 
dure of how the emergencies would be terminated. I also believe there 
is a great deal of merit in the concern of the chairman and ranking 
minority member at least as far as the 30-day period is concerned. 
I am wondering what the gentleman's response would be, and also the 
response of the others, to, say, a 90-day period, because we are dealing 
with a very extraordinary power given to the Chief Executive under 
states of emergency. 

Under laws that are presently around, there are some pretty heavy 
things that have come down. If we read them, we would think it was 
1984. I would not say any Chief Executive would use these powers, 
but they are certainly there, and I am just wondering if a proposal of 
90 days, which would seem to be at least to me a lot more reasonable 
than 30 days, and a lot more reasonable than the situation presently, 
might be at least an acceptable substitute for the gentleman's amend- 
ment that I know I could support. 

Mr. Drinan. Mr. Chairman, will the gentleman yield? 



275 

Mr. John L. Burtox. I yield to the gentleman from Massachusetts. 

Mr. Drixax. I thank the gentleman for yielding. 

I am not wedded to 30. 60. or 90 days, and I would be prepared to 
accept a substitute for 90 days. I think the basic principle I am fighting 
for is the burden of proof should be on the President and not on the 
Congress, and if the President asserts these powers and he wants to 
continue them after a certain term. 30. 60, or 90 days, the burden should 
be on him to reconvince the Congress, and the Congress — and the Con- 
gress alone — should extend those powers. 

I thank the gentleman for those comments, and I would accept 60 
or 90 days, because the burden of proof is the essential thing. 

As the gentleman suggested, there have been some terrible enact- 
ments that have come down, some 400 or 4o0, over the last 30 years, 
and we have been very fortunate that no President has exploited them. 
Congress has been derelict in its duty in not tidying up this legislation. 

Mr. Coxyers. Mr. Chairman, will the gentleman yield? 

Mr. John L. Burtox. I yield to the gentleman from Michigan. 

Mr. Coxyers. I thank the gentleman for yielding. 

I would like to commend the gentleman from California for suggest- 
ing that perhaps some compromise period may make good sense. I 
think that a period of 12 months or 6 months or 30 days has not been 
cast in granite. I concede that the Senate has acted. 

But perhaps the distinguished chairman of this subcommittee would 
consider some possible form of a 60- or 90-day provision. I think that 
unless we do this we are extending a definition of emergency to cover 
a period of time that I think is longer than it should really be under 
these circumstances and as this bill i< written. 

Mi*. Flowers. Mr. Chairman, will the gentleman yield ? 

Mr. John L. Burtox. I yield to the chairman. 

Mr. Flowers. Mr. Chairman, T think the gentleman's proposal of 
a longer period is far more acceptable than the 30-day period but I 
regret I cannot accept it on the basis of principle as well as on timing. 
The gentleman from Michigan knows we are not rnbberstamping the 
Senate. I certainly hope he knows that. It is not this Member's inten- 
tion to do that. 

I think we have a good balance in the bill between the recognition of 
the problems of the Legislative branch and those of the Executive 
branch with its peculiar responsibilities. 

As the gentleman from ^fassachusetts says, the reason this is here 
is because we failed to act over a long period. There has been no real 
abuse by the Executive branch of the emergency powers. Many of the 
emergency powers that have been utilized have been utilized for the 
purpose of carrying on the day-to-day business of the Government. 
Those powers have been utilized for so long they have become in- 
grained. They are almost like regular law instead of emergency 
powers, but we want to change this through this legislation. But to 
change the whole thrust of it so that we would require some affirma- 
tive legislative action in order to continue the emergency, I just could 
not accept that, regretfully. 

I ask my colleagues to vote down the amendment. 

Ms. Holtzmax. Mr. Chairman, I move to strike the requisite number 
of words. 

Mr. Chairman, basically T support the amendment that has been 
offered by the gentleman from Massachusetts (Mr. Drinan) which 



276 

would automatically terminate a national emergency declared by the 
President in 30 days unless specifically extended by Congress. I am 
gravely concerned that under this bill in order to abridge vast Presi- 
dential emergency powers the Congress is going to be required to act 
affirmatively. 

In the last session of Congress we enacted the war powers legisla- 
tion. In that legislation we tried to control the warmaking power that 
we had seen abused. We said that if the President starts his own war, 
it has got to terminate automatically after a 90-day period. 

That was an important provision because sometimes it takes a great 
deal of effort to get Congress to act affirmatively — even to stop abusive 
Executive action. I do not think the Congress^ ought to be put to the 
affirmative burden of stopping an abuse of Executive emergency 
powers. I think instead that after a 30- or 90-day period the emergency 
powers ought to terminate automatically unless Congress is persuaded 
that the circumstances warrant an extension. 

I cannot believe the Congress of the United States is incapable of 
acting expeditiously and promptly in a real emergency when called 
upon by the President. 

We do not even know the full extent of the emergency powers the 
President has. I have not seen a list of all of them. Is he allowed to have 
people arbitrarily arrested? Can he suspend various civil rights? If I 
saw a complete list of the powers the President could exercise under 
this bill, perhaps I would be less concerned. 

In addition, there is another problem : the President's emergency 
powers come into play when the President declares a national emer- 
gency. Yet this bill permits the President to declare a national emer- 
gency if he finds it "essential to the preservation, protection and 
defense of the Constitution or to the common defense, safety, or well- 
being of the territory or people of the United States." These are pretty 
vague and broad standards for declaring a national emergency and 
triggering vast Presidential powers. That is why my concern exists. 

"When we delegate vast powers to a President, we ought to also take 
into account how to protect the people from an abuse of those powers. 
Unfortunately this bill fails to do this effectively. 

Mr. Flowers. Mr. Chairman, if the gentlewoman will yield, the 
gentlewoman knows that this bill does not confer the powers. Those 
were conferred by other acts. And the report of the committee and 
the Senate study and many other books and references including 
earlier compilations by the House Judiciary Committee are at our 
disposal now to determine what emergency powers exist under the 
statutes passed by the Congress over a long period of time. 

Ms. Holtzmax. Would the gentleman agree we have not as members 
of this committee or Congress even received a list of all the emergency 
powers the President has under the statute ? 

Mr. Flowers. Xo. I disagree with the gentlewoman. We have had 
this before, the subcommittee had that fully before it, a rather com- 
plete volume which identifies the statutes and sets forth the language 
of the different pieces of legislation conferring these powers. 

The thrust »of this legislation is to provide a vehicle whereby a 
determination is made of a national emergency which activates these 
powers. 



277 

Ms. Holtzman. The gentleman would surely agree that in order 
to terminate a Presidential declaration of emergency — assuming there 
is no real emergency — the bill requires the Congress to act affirma- 
tively but that in the War Powers bill in order to prevent the possible 
abuse of Presidential powers those war-making powers terminate 
automatically without affirmative Congressional action. 

Mr. Flowers. This bill by its own terms set up the absolute require- 
ment that the Congress meet on the measure but on a six-month basis. 

Ms. Holtzmax. Would the gentleman answer this? Suppose the 
Congress in a six-month period is unable to reach an agreement about 
what to do; the emergency power persists, is that not true? 

Mr. Flowers. I,f Congress does not deny the emergency power, then 
the emergency exists. 

Ms. Holtzmax\ Suppose the House of Representatives opposes the 
declaration of emergency and the Senate votes otherwise and an agree- 
ment cannot be reached in conference, then what happens — the emer- 
gency power persists, is that not correct ? 

Mr. Flowers. That is correct, if Congress fails to act, then Congress 
has failed to act. 

Ms. Holtz:\iax\ That is precisely the problem I have. Congress 
has the burden of stopping a Presidential impropriety instead of 
giving the President the burden of affirmatively demonstrating that an 
emergency really exists. 

AMENDMENT OFFERED BY MR. COXYERS AS A SUBSTITUTE FOR THE 
AMENDMENT OFFERED BY MR. DRTXAX' 

Mr. Coxyers. Mr. Chairman, I offer an amendment as a substitute 
for the amendment offered by the gentleman from Massachusetts (Mr. 
Drin an). 

The Clerk read as follows : 

Amendment offered by Mr. Conyers as a substitute for the amendment offered 
by Mr. Drinan : Page 3, strike out the period at the end of line 15 and insert 
in lieu thereof the following : " ; or 

(3) 90 calendar days elapse following the declaration of an emergency unless 
Congress (A) has authorized by concurrent resolution the extension of such 
an emergency to a date certain, or (B) is physically unable to meet as a result 
of an armed attack upon the United States." 

Mr. Coxyers. Mr. Chairman, it is my hope that our subcommittee 
chairman, the gentleman from Alabama (Mr. Flowers) will see in his 
wisdom the validity of the 90-day calendar period that would require 
Congress to authorize such a resolution if the emergency itself had 
not been terminated within that period of time. 

I think this came out of our previous colloquv with the gentleman 
.from California (Mr. John L. Burton). To me it makes eminentlv 
good sense. I think the period of time should not rest upon the Execu- 
tive branch that an emergency could continue by definition and pref- 
erentially for a period of one year as proposed in^the amendment of the 
gentleman from Hawaii. 

It is conceded that the Congress can act at any time that it chooses, 
but by definition, I think that to extend an emergency beyond 90 days 
is stretching the generally understood meaning of that time. 



278 

For those reasons, I join with those of my colleagues who think that 
this would be a more reasonable and more practical resolution of what 
is generally a discussion around the definition of emergency. 

I would hope that my colleagues would consider this substitute 
amendment and I would yield to the original maker of the amend- 
ment, the gentleman from Massachusetts (Mr. Drinan), to seek his 
support. 

Mr. Drinan. Mr. Chairman, I have no objection to the substitute 
amendment offered by the distinguished gentleman from Michigan 
(Mr. Conyers). I think it is a reasonable one, and I would urge my 
colleagues to support it. 

Mr. Flowers. Mr. Chairman, I rise in opposition to the substitute 
amendment. It is eminently more sensible than the original, but it 
still bears the same basic fault that the original did. It destroys the 
finely tuned balance that is in the original piece of legislation. 

Mr. Moorhead of California. Mr. Chairman, will the gentleman 
yield? 

Mr. Flowers. I yield to the gentleman from California. 

Mr. Moorhead of California. Mr. Chairman. I wish to join with 
the chairman of the subcommittee in his remarks. I think that while 
it is somewhat better than the original, the same major objections are 
present in the substitute amendment. 

Mr. Flowers. Mr. Chairman, I ask for a no vote on the substitute 
and on the amendment. 

The Chairman. The question is on the amendment offered by the 
gentleman from Michigan (Mr. Conyers) as a substitute for the 
amendment offered by the gentleman from Massachusetts (Mr. 
Drinan) . 

The question is taken; and on a division (demanded by Mr. Drinan) 
there were — ayes 17 ; noes 36. 

So the substitute amendment for the amendment was rejected. 

The Chairman. The question is on the amendment offered by the 
gentleman from Massachusetts (Mr. Drinan). 

The amendment was rejected. 

AMENDMENT OFFERED BY MR. DRINAN 

Mr. Drinan. Mr. Chairman, I offer an amendment. 
The Clerk read as follows : 

Amendment offered by Mr. Drinan : Page 2, line 22, insert immediately after 
the period the following : 

"The President shall issue such a proclamation pursuant only to: (1) a decla- 
ration of war; (2) an attack upon the United States; its territories or posses- 
sions, or its armed forces; or (3) the prior enactment of a joint resolution 
specifically authorizing the President to issue such proclamation. The President 
in every possible instance shall seek the advice and counsel of Congress and 
provide Congress with all pertinent information before proclaiming the existence 
of a national emergency. After such proclamation has been issued, the President 
shall consult regularly with Congress until the national emergency has been 
terminated." 

Mr. Drinan (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record. 

The Chairman. Is there objection to the request of the gentleman 
from Massachusetts ? 



279 

There was no objection. 

Mr. Drixax. Mr. Chairman, in H.E. 3884 there is no standard 
really, whatsoever, when and why the President can proclaim a na- 
tional emergency. Section 201 states simply that the President may 
do this when he finds that such a proclamation of a national emer- 
gency is essential to the "preservation, protection and defense of the 
Constitution or to the common defense, safety, or well-being of the 
territory or people of the United States." 

It seems to me. Mr. Chairman, very clear that the Congress was 
given the lawmaking powers under the Constitution, and that what- 
ever right the President has to declare an emergency should be spelled 
out by the Congress of the United States. Though the last 40 years, 
the Congress has been very careless and derelict in not doing this. I 
think that today in this bill we should specify three areas, and three 
areas alone, in which the President can proclaim an emergency. Obvi- 
ously, when there is a declaration of war; second, when there is an 
attack upon the United States or its territories or its armed forces: 
and third, when the Congress by prior enactment of a joint resolution 
specifically authorizes the President to issue such proclamation. 

In each case, once again tracking the War Powers Resolution Act, 
the President in every possible instance, according to my amendment. 
shall seek the advice and counsel of Congress and shall provide Con- 
gress with all pertinent information before proclaiming the existence 
of a national emergency. 

After the emergency has been proclaimed, the President shall con- 
sult regularly with the Congress until the national emergency has been 
terminated. 

The key word in the language of my amendment is "consult." Why 
should we in the Congress allow the President unilaterally to proclaim 
an emergency and unilaterally to implement the provisions of said 
emergency? That is an abdication of the power clearly placed in the 
Congress bv the Constitution. I would urge, therefore. Mr. Chairman, 
that we adopt as an amendment to this particular bill today this 
clearly defined, explicitly spelled-out set of reasons why the President 
in certain limited unusual circumstances may in fact declare an 
emergency. 

Mr. Flowers. Mr. Chairman, I rise in opposition to the amendment 
offered by the gentleman from Massachusetts. 

Mr. Chairman. I must say in this particular instance I am even in 
much stronger opposition than I was in the previous instance. The 
gentleman's nmendment would attempt, it appears, to derogate the 
power of the President under the Constitution of the United States. It 
would attempt to define within a very, very narrow scope the power of 
the President to declare a national emergency. The gentleman's amend- 
ment would require that it be done only pursuant to a declaration of 
war or an attack upon the United States, which we would have to 
assume would be a prelude to a declaration of war. or a prior enact- 
ment of a joint resolution. In other words, the Legislative branch 
would be required to pass a joint resolution directing the President to 
so declare a national emergency. 

Mr. Chairman. I do not think that is what the principle of separa- 
tion of powers of the branches of Government under our Constitution 
envisions. It envisions that the Executive has some very peculiar 



66-474 O - 76 - 19 



280 

responsibilities as does the Legislative branch. We do not govern by 
legislative fiat in this country. We are not a parliamentary form of 
government. 

Mr. Chairman, I strongly oppose the gentleman's amendment. I 
think there would be serious questions as to whether this bill would 
be enacted into law should this amendment be adopted. It would com- 
pletely destroy the balance, as I said previously, that exists in this 
bill. 

Mr. Chairman, for these and a multitude of other reasons I strongly 
oppose the gentleman's amendment. 

Mr. Moorhead of California. Mr. Chairman, I move to strike the 
last word, and I rise in opposition to this amendment. 

Mr. Chairman, this amendment would completely take away from 
the President the flexibility of acting in times of crisis or an emer- 
gency. I think there was one particular emergency that was declared 
by a very well known President at an important time, and that was 
President Roosevelt's declaration of the banking holiday. If that had 
been triggered by Congressional debate and it required 30 days or so 
of debate before it could be put into effect, all the good that could 
have been done would have been wiped out and the whole thing would 
have gone down the tube before we had ever begun. 

Mr. Chairman, it is important that we give our President some flexi- 
bility from time to time. This bill gives the Congress the right to wipe 
out those emergencies on a moment's notice if we decide it is in the 
best interest to do so. But let us at least leave the President the con- 
stitutional authority he has to protect this country in times of need. 

Mr. Chairman, I ask for a no vote. 

Mr. Conyers. Mr. Chairman, I move to strike the requisite number 
of words. 

Mr. Chairman, my final participation in this debate revolves around 
the reason of this question: 'What happens if the President of the 
United States vetoes the congressional termination of the emergency 
power? Is that contemplatable within the purview of this legislation? 

I direct the question to the Chairman. 

Mr. Flowers. Mr. Chairman, will the gentleman yield? 

Mr. Conyers. I yield to the gentleman from Alabama. 

Mr. Flowers. Mr. Chairman, on the advice of counsel we have 
researched that thoroughly. A concurrent resolution would not require 
Presidential signature of acceptance. 

It would be an impossibility that it would be vetoed. 

Mr. Conyers. So there would be no way that the President could 
interfere with the Congress ? 

Mr. Flowers. The gentleman is correct. 

Mr. Conyers. Mr. Chairman, I thank the gentleman. 

The Chairman. The question is on the amendment offered by the 
gentleman from Massachusetts (Mr. Drinan) . 

The amendment was rejected. 

The Chairman. Under the rule, the Committee rises. 

Accordinglv the Committee rose; and the Speaker pro tempore (Mr. 
McFall) having assumed the chair, Mr- Eoncalio, Chairman of the 
Committee of the Whole House on the State of the Union, reported 
that the Committee having had under consideration the bill (H.R. 



281 

3884) to terminate certain authorities with respect to national emer- 
gencies still in effect, and to provide for orderly implementation and 
termination of future national emergencies, pursuant to House Resolu- 
tion 524, he reported the bill back to the House with sundry amend- 
ments adopted by the Committee of the Whole. 

The Speaker pro tempore. Under the rule, the previous question is 
ordered. 

Is a separate vote demanded on any amendment ? If not, the Chair 
will put them en gros. 

The amendments were agreed to. 

The Speaker, pro tempore. The question is on the engrossment and 
third reading of the bill. 

The bill was ordered to be engrossed and read a third time, and was 
read the third time. 

The Speaker pro tempore. The question is on the passage of the 
bill. 

The question was taken: and the Speaker pro tempore announced 
that the ayes appeared to have it. 

Mr. Flowers. Mr. Speaker, on that I demand the yeas and nays. 

The yeas and nays were ordered. 

The vote was taken by electronic device and there were — yeas 388, 
nays 5, not voting 40, as follows : 





[Roll No. 494] 






YEAS— 388 




Abdnor 


Boggs 


Clawson, Del 


Abzug 


Boland 


Clay 


Adams 


Boiling 


Cleveland 


Addabbo 


Bonker 


Cochran 


Alexander 


Bowen 


Cohen 


Ambro 


Brademas 


Collins, 111. 


Anderson, Calif. 


Breaux 


Collins, Tex. 


Anderson, 111. 


Breckinridge 


Conable 


Andrews, N.C. 


Brinkley 


Conlan 


Andrews. X. Dak. 


Brodhead 


Conte 


Annunzio 


Brooks 


Corman 


Archer 


Broomfield 


Cornell 


Armstrong 


Brown, Calif. 


Cotter 


Ashbrook 


Brown, Mich. 


Coughlin 


Ashley 


Brown, Ohio 


Crane 


A spin 


Brojhill 


D'Amours 


AuCoin 


Buchanan 


Daniel, Dan 


Badillo 


Burgener 


Daniel, R. W. 


Bafalis 


Burke, Calif. 


Daniels, X.J. 


Baldus 


Burke, Mass. 


Danielson 


Barrett 


Burleson, Tex. 


Davis 


Baucus 


Burlison, Mo. 


de la Garza 


Bauman 


Burton, John 


Delaney 


Beard, R.I. 


Burton, Phillip 


Dent 


Beard, Tenn. 


Butler 


Derrick 


Bedell 


Byron 


Devine 


Bell 


Carney 


Dingell 


Bennett 


Carr 


Dodd 


Bergland 


Carter 


Downey, X.Y. 


Bevill 


Casey 


Downing, Va. 


Biaggi 


Cederberg 


Duncan, Tenn 


Bingham 


Chappell 


du Pont 


Blanchard 


Chisholm 


Early 


Blouin 


Clancy 


Eckhardt 



282 



Edgar 

Edwards, Ala. 

Edwards, Calif. 

Eilberg 

Emery 

English 

Erlenborn 

Esch 

Eshleman 

Evans, Colo. 

Evans, Ind. 

Fascell 

Fenwick 

Findley 

Fish 

Fisher 

Flood 

Florio 

Flowers 

Flynt 

Foley 

Ford, Mich. 

Ford, Tenn. 

Fountain 

Frenzel 

Frey 

Fuqua 

Gaydos 

Giaimo 

Gibbons 

Gilman 

Ginn 

Goldwater 

Gonzalez 

Goodling 

Gradison 

Grassley 

Green 

Gude 

Guyer 

Hagedorn 

Haley 

Hall 

Hammerschmidt 

Hanley 

Hannaford 

Hansen 

Harkin 

Harrington 

Harris 

Harsha 

Hastings 

Hawkins 

Hayes, Ind. 

Hays, Ohio 

Hechler, W. Va. 

Heckler, Mass. 

Hefner 

Heinz 

Helstoski 

Henderson 

Hicks 

Hightower 

Hillis 

Hinshaw 

Holland 



Holt 

Horton 

Howe 

Hubbard 

Hughes 

Hutchinson 

Hyde 

I chord 

Jacobs 

Jeffords 

Jenrette 

Johnson, Calif. 

Johnson, Colo. 

Johnson, Pa. 

Jones, Ala. 

Jones, N.C. 

Jones, Okla. 

Jones, Tenn. 

Karth 

Kasten 

Kastenmeier 

Kazen 

Kelly 

Kemp 

Ketchum 

Keys 

Kindness 

Koch 

Krebs 

Krueger 

LaFalce 

Lagomarsino 

Latta 

Leggett 

Lehman 

Lent 

Levitas 

Litton 

Lloyd, Calif. 

Lloyd, Tenn. 

Long, La. 

Lott 

Lujan 

McCloskey 

McCollister 

McDade 

McDonald 

McFall 

McHugh 

McKinney 

Macdonald 

Madden 

Madigan 

Maguire 

Mahon 

Mann 

Martin 

Matsunaga 

Mazzoli 

Meeds 

Melcher 

Metcalfe 

Meyner 

Mezvinsky 

Michel 

Mikva 



Milford 

Miller, Calif. 

Miller, Ohio 

Mills 

Mineta 

Minish 

Mink 

Mitchell, Md. 

Mitchell, N.Y. 

Moakley 

Moffett 

Mollohan 

Montgomery 

Moore 

Moorhead, Calif. 

Moorhead, Pa. 

Morgan 

Mosher 

Mottl 

Murphy, 111. 

Murphy, N.Y. 

Murtha 

Myers, Ind. 

Myers, Pa. 

Natcher 

Neal 

Nichols 

Nix 

Nolan 

Nowak 

Oberstar 

Obey 

O'Brien 

O'Hara 

O'Neill 

Ottinger 

Passman 

Patman, Tex. 

Patterson, Calif. 

Pattison, N.Y. 

Perkins 

Pettis 

Pickle 

Pike 

Poage 

Pressler 

Preyer 

Price 

Quie 

Quillen 

Railsback 

Randall 

Rangel 

Rees 

Regula 

Reuss 

Rhodes 

Richmond 

Rinaldo 

Roberts 

Robinson 

Rodino 

Rogers 

Roncalio 

Rooney 

Rose 



283 



Rosenthal 


Smith, Nebr. 


Vander Jagt 


Rostenkowski 


Snyder 


Vander Veen 


Roush 


Spellman 


Vanik 


Rousselot 


Spence 


Vigorito 


Rojbal 


Staggers 


Waggonner 


Runnels 


Stanton, J. William 


Wampler 


Ruppe 


Stanton, James V. 


Waxman 


Russo 


Stark 


Weaver 


Ryan 


Steed 


Whalen 


St Germain 


Steelman 


White 


Santini 


Steiger, Ariz. 


Whitehurst 


Sarasin 


Steiger, Wis. 


Whitten 


Sarbanes 


Stephens 


Wiggins 


Satterfield 


Stokes 


Wilson, Bob 


Scheuer 


Stratton 


Wilson, C. H. 


Schneebeli 


Studds 


Winn 


Schroeder 


Sullivan 


Wirth 


Schulze 


Symington 


Wolfe 


Sebeliun 


Symms 


Wright 


Seiberling 


Talcott 


Wydler 


Sharp 


Taylor, Mo. 


Wylie 


Shipley 


Taylor, N.C. 


Yates 


Shriver 


Teague 


Yatron 


Sinister 


Thone 


Young, Fla. 


Sikes 


Thornton 


Young, Ga. 


Simon 


Traxler 


Young, Tex. 


Sisk 


Treen 


Zablocki 


Skubitz 


Tsongas 


Zeferetti 


Slack 


Udall 




Smith, Iowa 


Ullman 

XAYS— 5 




Conyers 


Drinan 


Moss 


Dellums 


Holtzman 

NOT VOTING— 40 




Biester 


Howard 


Peyser 


Burke, Fla. 


Hungate 


Pritchard 


Clausen, Don H. 


Jarman 


Riegle 


Derwinski 


Jordan 


Risenhoover 


Dickinson 


Landrum 


Roe 


Diggs 


Long, Md. 


Solarz 


Duncan, Oreg. 


McClory 


Stuckey 


Evins, Tenn. 


McCormack 


Thompson 


Fary 


McEwen 


Van Deerlin 


Fithian 


McKay 


Walsh 


Forsythe 


Ma this 


Wilson, Tex. 


Fraser 


Xedzi 


Young, Alask 


Hamilton 


Patten, N.J. 




Hebert 


Pepper 





So the bill was passed. 

The Clerk announced the following pairs 

Mr. Hebert with Mr. Duncan of Oregon. 

Mr. Stuckey with Mr. Riegle. 

Mr. Hamilton with Mr. Charles Wilson of Texas. 

Mr. Thompson with Mr. Fithian. 

Mr. Fary with Mr. Biester. 

Mr. McCormack with Ms. Jordan. 

Mr. Nedzi with Mr. Long of Maryland. 

Mr. Pepper with Mr. Don H. Clausen. 

Mr. Patten with Mr. Forsythe. 

Mr. Roe with Mr. McClory. 

Mr. Solarz with Mr. McKav. 



284 



Mr. Fraser with Mr. Dickinson. 

Mr. Van Deerlin with Mr. Burke of Florida. 

Mr. Diggs with Mr. Howard. 

Mr. Evins of Tennessee with Mr. Jarman. 

Mr. Risenhoover with Mr. McEwen. 

Mr. Landrum with Mr. Derwinski. 

Mr. Mathis with Mr. Peyser. 

Mr. Hungate with Mr. Pritchard. 

Mr. Walsh with Mr. Young of Alaska. 

The result of the vote was announced as above recorded. 
A motion to reconsider was laid on the table. 



General Leave 

Mr. Flowers. Mr. Speaker, I ask unanimous consent that all Mem- 
bers may have five legislative days in which to revise and extend their 
remarks on the bill just passed. 

The Speaker. Is there objection to the request of the gentleman 
from Alabama. 

There was no objection. 






INTRODUCTION OF S. 977, 94TH CONGRESS 

[Congressional Record — v. 121, Mar. 6, 1975 — p. S3202] 
By Mr. MATHIAS (for himself and Mr. Church) 

S. 977. A bill to terminate certain authorities with respect to national 
emergencies still in effect, and to provide for orderly implementation and 
termination of future national emergencies. Referred to the Committee on 
Government Operations. 

National Emergencies Act 

Mr. Mathias. Mr. President two years ago the Senate created the 
Special Committee on the Termination of the National Emergency to 
examine the state of emergency which then existed and to provide a 
regular and constitutional process to meet future needs. Sena- 
tor Church and I were named cochairmen of the only bipartisan com- 
mittee in the Senate, and Senators Hart, Pell, Stevenson. Case, 
Pearson, and Hansen were named Committee members. 

The Committee concluded that not one, but four national emergen- 
cies exist and continue to this day. Moreover, we discovered that emer- 
gency powers exist in more than 470 separate statutes and, when 
combined, give the President potential dictatorial powers. It seemed 
appropriate to change the name of the Committee to its present title, 
the Special Committee on National Emergencies and Delegated Emer- 
gency Powers and to consider remedial legislation. 

Last year the Special Committee submitted to the Senate Govern- 
ment Operations Committee S. 3957. This bill defined a national 
emergency, removed obsolete statutes from the books, continued six 
statutes in their present status, and placed the remainder of the emer- 
gency powers under special procedures which insure that adequate 
notice exists of Presidential action invoking emergency powers and 
that there is created in Congress the right to terminate such emer- 
gencies by concurrent resolution. Moreover, procedures would be estab- 
lished by the law which would encourage the Congress to consider 
and vote every 6 months on whether a state of national emergency 
should or should not be continued. 

S. 3957 was favorably recommended to the Senate by the Govern- 
ment Operations Committee and passed the Senate unanimously on 
October 7. It had been the intention of the chairman of the House 
Judiciary Committee to hold early hearings in the House so that the 
National Emergencies Act might become law in the last session of 
Congress. The impeachment hearings and the nomination of Vice 
President Rockefeller prevented the Committee from realizing this 
hope. 

Senator Church and I have now met with the chairman, Repre- 
sentative Rodino. and the subcommittee chairman. Representa- 
tive Walter Flowers, to determine how the Act might be given early 

">85) 



286 

and favorable consideration. The House committee leaders have been 
most helpful and have scheduled the first hearing today. 

I now have the pleasure of introducing the National Emergencies 
Act for consideration in this Congress. The version I lay before the 
Senate is nearly identical to S. 3957 and is identical to the version 
introduced in the House last week. Two minor technical amendments 
have been made. 

It is my hope that we will soon see the enactment into law of this 
legislation. I ask that this bill be appropriately referred. 



TEXT OF S. 977, 94th CONGRESS 

A BILL To terminate certain authorities with respect to national emergencies still in 
effect, and to provide for orderly implementation and termination of future national 
emergencies 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That this Act may be cited as the "National 
Emergencies Act". 

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES 

Sec. 101. (a) All powers and authorities possessed by the President, any 
other officer or employee of the Federal Government, or any Executive agency, 
as defined in section 105 of Title 5, United States Code, as a result of the existence 
of any declaration of national emergency in effect on the date of enactment of 
this Act are terminated one year from the date of such enactment. Such termina- 
tion shall not affect — 

(1) any action taken or proceeding pending not finally concluded or deter- 
mined on such date ; 

(2) any action or proceeding based on any act committed prior to such 
date ; or 

(3) any rights or duties that matured or penalties that were incurred 
prior to such date. 

(b) For the purpose of this section, the words "any national emergency in 
effect" means a general declaration of emergency made by the President pursuant 
to a statute authorizing him to declare a national emergency. 

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES 

Sec. 201. (a) In the event the President finds that a proclamation of a national 
emergency is essential to the preservation, protection and defense of the Consti- 
tution or to the common defense, safety, or well-being of the territory or people 
of the United States, the President is authorized to proclaim the existence of a 
national emergency. Such proclamation shall immediately be transmitted to the 
Congress and published in the Federal Register. 

(b) Any provisions of law conferring powers and authorities to be exercised 
during a national emergency shall be effective and remain in effect (1) only when 
the President (in accordance with subsection (a) of this section), specifically 
declares a national emergency, and (2) only in accordance with this Act. No 
law enacted after the date of enactment of this Act shall supersede this title 
unless it does so in specific terms, referring to this title, and declaring that the 
new law supersedes the provisions of this title. 

Sec 202 (a) Any national emergency declared by the President in accordance 
with this title shall terminate if — 

( 1 ) Congress terminates the emergency by concurrent resolution ; or 

(2) the President issues a proclamation terminating the emergency. 

At the end of each year following the declaration of an emergency which is still 
in effect, the President shall publish in the Federal Register and transmit to the 
Congress a notice stating that the emergency is still in effect. Any national emer- 
gency declared by the President shall be terminated on the datespecified in anv 
concurrent resolution referred to in clause (1) of this subsection, and any 
powers or authorities exercised by reason of said emergency shall cease to be 
exercised after such specified date, except that such termination shall not affect— 

(A) any action taken or proceeding pending not finally concluded or 
determined on such date; 

(B) any action or proceeding based on any act committed prior to such 
date; or 

(C) any rights or duties that matured or penalties that were incurred 
prior to such date. 

(287) 



288 

(b) Not later than six months after a national emergency is declared, and 
not later than the end of each six-month period thereafter that such emergency 
continues, each House of Congress shall meet to consider a vote on a concurrent 
resolution to determine whether that emergency shall be terminated. 

(c) (1) A concurrent resolution to terminate a national emergency declared 
by the President shall be referred to the appropriate committee of the House of 
Representatives or the Senate, as the case may be. One such concurrent resolu- 
tion shall be reported out by such committee together with its recommendations 
within fifteen calendar days, unless such House shall otherwise determine by 
the yeas and nays. 

(2) Any concurrent resolution so reported shall become the pending business 
of the House in question (in the case of the Senate the time for debate shall be 
equally divided between the proponents and the opponents) and shall be voted 
on within three calendar days thereafter, unless such House shall otherwise 
determine by yeas and nays. 

(3) Such a concurrent resolution passed by one House shall be referred to 
the appropriate committee of the other House and shall be reported out by 
such committee together with its recommendations within fifteen calendar days 
and shall thereupon become the pending business of such House and shall be 
voted upon within three calendar days, unless such House shall otherwise 
determine by yeas and nays. 

(4) In the case of any disagreement between the two Houses of Congress with 
respect to a concurrent resolution passed by both Houses, conferees shall be 
promptly appointed and the committee of conference shall make and file a 
report with respect to such concurrent resolution within six calendar days after 
the legislation is referred to the committee of conference. Notwithstanding any 
rule in either House concerning the printing of conference reports in the Record 
or concerning any delay in the consideration of such reports, such report shall 
be acted on by both Houses not later than six calendar days after the conference 
report is filed. In the event the conferees are unable to agree within forty-eight 
hours, they shall report back to their respective Houses in disagreement. 

(5) Paragraph (l)-(4) of this subsection, subsection (b) of this section, and 
section 602(b) of this Act are enacted by Congress — 

(A) as an exercise of the rulemaking power of the Senate and the House 
of Representatives, respectively, and as such they are deemed a part of the 
rules of each House, respectively, but applicable only with respect to the 
procedure to be followed in the House in the case of resolutions described 
by this subsection ; and they supersede other rules only to the extent that 
they are inconsistent therewith ; and 

(B) with full recognition of the constitutional right of either House to 
change the rules (so far as relating to the procedure of that House) at any 
time, in the same manner, and to the same extent as in the case of any other 
rule of that House. 

TITLE III— DECLARATIONS OF WAR BY CONGRESS 

Sec. 301. Whenever Congress declares war, any provisions of law conferring 
powers and authorities to be exercised during time of war shall be effective from 
the date of such declaration. 

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES 

Sec 401. When the President declares a national emergency no powers or au- 
thorities made available by statute for use in the event of an emergency shall 
be exercised unless and until the President specifies the provisions of law under 
which he proposes that he, or other officers will act. Such specification may be 
made either in the declaration of a national emergency, or by one or more con- 
temporaneous or subsequent Executive orders published in the Federal Register 
and transmitted to the Congress. 

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS 
OF THE PRESIDENT 

Sec 501. (a) When the President declares a national emergency, or Congress 
declares war, the President shall be responsible for maintaining a file and index 
of all significant orders of the President, including Executive orders and procla- 



289 

mations, and each such Executive agency shall maintain a file and index of 
all rules and regulations, issued during such emergency or war issued pursuant 
to such declarations. 

(b) All such significant orders of the President, including Executive orders, 
and such rules and regulations shall be transmitted to the Congress promptly 
under means to assure confidentiality where appropriate. 

(c) When the President declares a national emergency or Congress declares 
war, the President shall transmit to Congress, within thirty days after the end 
of each three-month period after such declaration, a report on the total expendi- 
tures incurred by the United States Government during such three-month period 
which are directly attributable to the exercise of powers and authorities con- 
ferred by such declaration. Not later than thirty days after the termination of 
each such emergency or war, the President shall transmit a final report on ail 
such expenditures. 

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY 
POWER AND OTHER STATUTES 

Sec. 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 
1481(a)) is amended — 

(1) at the end of paragraph (9), by striking out "; or" and inserting in 
lieu thereof a period ; and 

(2) by striking out paragraph (10). 

(b) Section 2667(b) of Title 10 of the United States Code is amended— 

(1) by inserting "and" at the end of paragraph (3) ; 

(2) by striking out paragraph (4) ; and 

(3) by redesignating paragraph (5) as (4). 

(c) The joint resolution entitled "Joint resolution to authorize the temporary 
continuation of regulation of consumer credit," approved August 8, 1947 (12 
U.S.C. 249), is repealed. 

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 
831 (m) ) is repealed. 

i <■ ) Section 1383 of Title 18, United States Code, is repealed. 

( f ) Section 6 of the Act entitled "An Act to amend the Public Health Service 
Act in regard to certain matters of personnel and administration, and for other 
purposes," approved February 28, 1948, is amended by striking out subsections 
(b), (c), (d), (e),and (f) (42 U.S.C. 211b). 

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742) 
is repealed. 

(h) This section shall not affect — 

( 1 ) any action taken or proceeding pending not finally concluded or de- 
termined at the time of repeal ; 

(2) any action or proceeding based on any act committed prior to repeal; 
or 

(3) any rights or duties that matured or penalties that were incurred prior 
to repeal. 

Sec 602. (a) The provisions of this Act shall not apply to the following pro- 
visions of law, the powers and authorities conferred thereby, and actions taken, 
thereunder : 

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 
95(a) ; 50 U.S.C. App. 5(b)) ; 

(2) Section 673 of Title 10, United States Code ; 

(3) Act of April 28, 1942 (40 U.S.C. 278b) ; 

(4) Act of June 30, 1949 (41 U.S.C. 252) ; 

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ; 

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15). 
(1)) Each committee of the House of Representatives and the Senate having 

jurisdiction with respect to any provision of law referred to in subsection (a) 
(l)-(6) of this section shall make a complete study and investigation concern- 
ing that provision of law and make a report, including any recommendations 
and proposed revisions it may have, to its respective House of Congress within 
two hundred and seventy days after the date of enactment of this Act. 



290 



Calendar No. 1102 



D4th Congress ) SENATE f IteGar 



2d Session f 1 No. 94-116* 



NATIONAL EMERGENCIES ACT 



August 26, 1976. — Ordered to be printed 



Mr. RmicoiT, from the Committee on Government Operations, 

submitted the following 

REPORT 

[To accompany H.R. 3884] 

The Committee on Government Operations, to which was referred 
the bill (H.R. 3884) to terminate certain authorities with respect to 
national emergencies still in effect, and to provide for orderly imple- 
mentation and termination of future national emergencies, having 
considered the same, reports favorably thereon with amendments and 
recommends that the bill as amended do pass. 

The amendments are as follows : 

On page 2, strike out lines 16 through 23, and insert in lieu thereof 
the following : 

Sec. 201(a) With respect to Acts of Congress authorizing 
the exercise, during the period of a national emergency, of 
any special or extraordinary power, the President is author- 
ized to declare such national emergency. Such proclamation 
shall immediately be transmitted to the Congress and pub- 
lished in the Federal Register. 

On page 3, line 18, after "subsection," insert "whichever date is 
earlier,". 

On page 4, line 14, strike the word "days," and insert "days after 
the day on which such resolution is referred to such committee,". 

On page 4, line 20, strike the word "thereafter," and insert in lieu 
thereof "after the day on which such resolution is reported,". 

On page 4, line 25, after the word "days" insert "after the day on 
which such resolution is referred to such committee". 

On page 5, line 2, strike the word "days," and insert "days after the 
day on which such resolution is reported,". 

On page 5, lines 9 and 10, strike out "after the legislation is referred 
to the committee of conference." and insert in lieu thereof "after the 

(1) 



291 



day on which managers on the part of the Senate and the House have 
been appointed.". 

On page 5, lines 11 and 12, strike out "in the Hecord". 

On page 5, line 15, strike the word "filed." and insert "filed in the 
House in which such report is filed first.". 

On page 5, line 19, strike out "602(b)" and insert in lieu thereof 
"502(b)". 

On page 6, line 15, strike out "the emergency is still in effect." and 
insert in lieu thereof "such emergency is to continue in effect after 
such anniversary.". 

On page 6, lines 18 and 19, strike the word "emergency", and insert 
the word "emergency,". 

On page 10, line 12, strike out "it" and insert in lieu thereof "such 
committee". 

Purpose 

The purpose of H.K. 3884 is to terminate, as of 2 years from the 
date of enactment, powers and authorities possessed by the Executive 
as a result of existing states of national emergency, and to establish 
authority for the declaration of future emergencies in a manner which 
will clearly define the powers of the President and provide for regular 
congressional review. 

In order to carry out this purpose, the National Emergencies Act 
would : 

(1) Terminate, as of 2 years from the date of enactment, pow- 
ers and authorities available to the Executive, pursuant to ap- 
proximately 470 statutes, as a result of the states of national 
emergency now in force ; 

(2) Provide for congressional review of future Presidential 
declarations of national emergencies no less frequently than every 
6 months and congressional termination of states of emergency 
at any time by concurrent resolution ; 

(3) Provide for congressional oversight of and accountability 
for actions taken by the Executive in the exercise of delegated 
emergency powers ; 

(4) Repeal specific obsolete emergency powers statutes and 
retain in force certain statutes deemed necessary for ongoing op- 
erations of the government. 

Enactment of this legislation would end the states of emergency 
under which the United States has been operating for more than 40 
years. It would also insure that the extraordinary powers which now 
reside in the hands of the Chief Executive — powers delegated by 
the Congress to seize property and commodities, organize and control 
the means of production, assign military forces abroad and restrict 
travel — could be utilized only when emenrencies actually exist, and 
then, only under safeguards of congressional review. Reliance on 
emergency authority, intended for use in crisis situations would no 
longer be available in non-crisis situations. At a time when govern- 
ments throughout the world are turning with increasing desperation 
to an all-powerful executive, this legislation is designed to insure that 
the United States travels a road marked by carefully constructed legal 
safeguards. 



292 



Committee Amendments 

The committee adopted one substantive and several technical 
amendments to H.R. 3884, as passed by the House of Representatives. 

With respect to the substantive amendment, following consultations 
with several constitutional law experts, the committee concluded that 
section 201(a) is overly broad, and might be construed to delegate ad- 
ditional authority to the President with respect to declarations of 
national emergency. In the judgment of the committee, the language 
of this provision was unclear and ambiguous and might have been con- 
strued to confer upon the President statutory authority to declare 
national emergencies, other than that which he now has through vari- 
ous statutory delegations. 

The Committee amendment clarifies and narrows this language. The 
Committee decided that the definition of when a President is author- 
ized to declare a national emergency should be left to the various 
statutes which give him extraordinary powers. The National Emer- 
gencies Act is n6t intended to enlarge or add to Executive power. 
Rather the statute is an effort by the Congress to establish clear proce- 
dures and safeguards for the exercise by the President of emergency 
powers conferred upon him by other statutes. 

Therefore, the Committee amendment makes no attempt to define 
when a declaration of national emergency is proper. The amendment 
simply requires the President to transmit to the Congress and publish 
in the Federal Register a Presidential declaration of national emer- 
gency authorized by other Acts of Congress. 

The principal technical amendments adopted by the committee are 
contained in those portions of section 202 which set forth the proce- 
dures and time sequences to be followed by both Houses in considering 
and taking action with respect to declarations of national emergency. 
A perfecting amendment in section 202(c) (5) would correct a print- 
ing error by changing a reference to section 602(b) to section 502(b). 
Additional technical and perfecting amendments are contained in 
sections 301 and 502(b). None of the technical and perfecting amend- 
ments make any substantive changes. 

Statement 

Title I of H.R. 3884 provides for the termination of all existing 
powers and authorities based on any general declaration of national 
emergency in effect on the date of enactment, to take effect 2 years 
from the date of enactment of the legislation. The 2-year delay is 
designed to provide time for all executive agencies, offices, and depart- 
ments, dependent on emergency statutes for their day-to-day opera- 
tions, to seek permanent legislation, if appropriate. It would permit 
an orderly transition and give the Congress adequate opportunity to 
evaluate executive requests. 

Exempted from the general termination provision are (1) any ac- 
tion taken, or proceeding pending, not finally concluded or determined 
on such date; (2) any action or proceeding based on any act com- 
mitted prior to such date; and (3) any rights or duties that have ma- 
tured or penalties that were incurred prior to such date. These exemp- 



293 



tions are to be narrowly construed to cover only pending legal actions 
or administrative proceedings based upon an action taken while the 
declaration of a national emergency was in effect, and the right to 
bring legal actions or administrative proceedings as a result of actions 
taken while the declaration of national emergency was in effect. 

Thus, the termination of a declaration of national emergency would 
not prohibit legal action against a person or persons for conduct 
in violation of an emergency statute if the conduct occurred while 
the declaration of national emergency was in effect. The termination 
of an emergency power which is a subject of a court action still 
terminates that power but it does not affect the validity of that pend- 
ing court action. Thus the emergency powers are terminated but not 
court proceedings based upon actions taken while those powers were 
still in effect. 

Title I pertains solely to powers and authorities based on a Presi- 
dential declaration of emergency issued prior to the date of enact- 
ment of the bill. It does not affect laws, such as the Defense Produc- 
tion Act, which are not dependent upon a Presidential declaration of 
emergency — even though such laws may be referred to in a general 
sense as "emergency" statutes. 

Title II concerns the declaration and termination of future national 
emergencies. The provisions of title II, together with those of titles 
III and IV, are designed to insure congressional oversight of Presi- 
dential actions pursuant to declarations of a national emergency au- 
torized by an act of Congress. While the War Powers Act, (Public 
Law 93-148), established oversight powers and procedures with re- 
spect to the commitment of our armed forces absent a congressional 
declaration of war, no such oversight has existed to date with respect 
to other presidential actions taken pursuant to declarations of na- 
tional emergency. Therefore, the Special Committee on National Emer- 
gencies recommended the remedial action contained in this statute. 
While these procedures are patterned after those in the War Powers 
Act, this statute is not intended to conflict with, supersede, or alter 
any part of the War Powers Act. 

Section 201(a) provides that, with respect to Acts of Congress 
authorizing the exercise, during the period of a national emergency, 
of any special or extraordinary power, the President is authorized to 
declare such national emergency. Such proclamation must be immedi- 
ately transmitted to the Congress and published in the Federal Regis- 
ter. This section is clearly not intended to grant additional authority 
to the President. The President can only exercise those powers dele- 
gated to him in other statutes. The circumstances authorizing a decla- 
ration of national emergency are defined by the statutes giving the 
President the extraordinary powers to use in the case of a national 
emergency. The purpose of this statute is to prescribe the procedures 
to be followed in the event that the President proclaims a national 
emergency, as authorized by some other statute. 

The provisions of this bill are not meant to supersede existing pro- 
visions of law which authorize declarations of emergency by the 
Congress. The legislation is directed solely to Presidential declara- 
tions of emergency. 

Emergency authorities will come into effect only if the President 
complies with the provisions of this act. Section 201(a) requires 



294 



that any Presidential declaration of an emergency be immediately 
transmitted to the Congress and published in the Federal Register. 
Section 201(b) states that the statutes granting powers to the Presi- 
dent in time of emergency shall have effect only during times the 
President has declared a national emergency and then only if he has 
acted in accordance with the provisions of the act. This latter stipula- 
tion has particular reference to the provisions of section 301 which 
require that the President specify the laws he or other officers will 
utilize. Another provision of section 201(b) states that no subsequent 
enactment will supersede the title unless it does so in specific terms. 

Section 202(a) provides for the termination of presidentially de- 
clared emergencies by either a concurrent resolution of the Congress 
or a proclamation by the President. Both the Congress and the Presi- 
dent have terminated such emergencies in the past, but the absence 
of specific statutory procedures has resulted in the failure to terminate 
the declarations of emergency issued in 1933, 1950, 1970, and 1971. 
The exceptions to the termination provision for court proceedings are 
identical to those in section 101(a) discussed above. 

Section 202(d) provides for the automatic termination of an emer- 
gency if the President does not publicly renew the emergency by 
means of the publication required oy this section. 

Subsections (b) and (c) of section 202 establish procedures to in- 
sure congressional consideration of a concurrent resolution which 
would terminate a national emergency. The provisions are similar to 
those set out in secton 7 of Public Law 93-148, the War Powers Act, 
of November 7, 1973. Not later than 6 months after a national emer- 
gency is declared and not later than the end of each 6-month period 
thereafter that such emergency continues, each House of the Congress 
must meet to consider a vote on a concurrent resolution to determine 
whether that emergency should be terminated. As stated above, while 
these procedures are patterned after those in the War Powers Act, 
this statute is not intended to conflict with, supersede or alter any part 
of the War Powers Act. 

Section 202(c) sets forth procedures to be followed in considering 
the concurrent resolution. The provisions which guarantee prompt 
congressional action are stated to be an exercise of the rulemaking 
power of the House and Senate. 

Title III states that when the President declares a national emer- 
gency, no powers and authorities made available by statute for use in 
an emergency shall be exercised unless and until the President specifies 
the provisions of law under which he or other officers will aet. Under 
existing laws, a Presidential emergency declaration automatically 
activates emergency provisions throughout the United States Code, 
regardless of the relevance of the statute to the emergency at hand. 
The new procedure permits the Executive to invoke only the emer- 
gency provisions he needs without bringing into force an entire body 
of law, and insures that the Congress and the public will know what 
statutes are brought into force. 

Title IV specifies the accountability and reporting requirements ap- 
plicable during a time of national emergency. The President is re- 
quired to maintain a file of significant orders, and executive agencies 
are required to keep a record of rules and regulations issued pursuant 
±o a declaration of emergency. This information is to be promptly 

S. Kept 94-1168— 76 ^^ g - 



295 



transmitted to the Congress. In addition, the President is required to 
report emergency expenditures every 6 months. To provide time for a 
complete accounting of expenditures, the bill provides the Executive 
with 90 days from the end of each 6-month period to file his report 
in which he is expected to explain the nature of and authority for the 
expenditures. 

In a letter to the committee, Mr. William Colby, then "Director of 
the CIA, suggested that the Central Intelligence Agency would not 
be bound by the reporting requirements of this title. The committee 
does not acknowledge the existence of such an exemption. The need 
of the CIA for security and confidentiality can be respected by the 
Congress as much under this authority as under any other. The act 
specifically recognizes the need to "assure confidentiality where appro- 
priate." The committee believes the CIA can comply with the require- 
ment of the act by reporting to its oversight committee or committees. 
(Copies of Mr. Colby's letter and Senator Church's response, directed 
to Senator Ribicoff, are set forth in Appendix A of this report.) 

Title V deals with the repeal and continuation of certain emergency 
powers and statutes. Section 501 provides for the repeal or amend- 
ment of eight existing laws which have been found to be superseded 
or obsolete. The provisions of section 501 are as follows: 

Subsection (a) strikes paragraph 10 of section 349(a) of the 
Immigration and Nationality Act, which provides for the ex- 
patriation of persons remaining outside the jurisdiction of the 
United States in time of war or national emergency to avoid 
service in the military. The Supreme Court in Kennedy v. Men- 
doza Martinez, 372 U.S. 144 (1963), declared the authority to be 
unconstitutional. 

Subsection (b) deletes clause 4 of section 2667(b) of title 10, 
which requires that leases of nonexcess property of a military de- 
partment must include a provision making: the lease revocable 
during a national emergency. The change allows military depart- 
ments the option to decide whether to include a provision making 
leases of nonexcess property revocable during a national emer- 
gency declared by the President. 

Subsection (cj repeals a 1947 ioint resolution dealing with the 
regulation of consumer credit. The provisions of the act are ob- 
solete, since, under section 1904 of title 12, the President is 
empowered to authorize the Board of Governors of the Federal 
Reserve System to regulate extensions of credit. 

Subsection (d) repeals section 5(m) of the Tennessee Valley 
Authority Act of 1933, which bars the sale of TVA products out- 
side of the United States except to the Government for military 
use or to its allies in case of war or until six months after the 
termination of the Korean emergency. The committee has been 
advised that the provisions of subsection (m) have no present 
application. 

Subsection (e) repeals section 1383 of title 18, which provides 
criminal penalties for persons entering, remaining in, leaving, or 
committing any act in a military area or military zone contrary 
to applicable restrictions prescribed by Executive Order or the 



66-474 O - 76 - 20 



296 



Secretary of the Army where it appears that the individual knew 
of the restrictions and acted in violation thereof. This authority 
permits the President to establish defensive land areas, such as 
occurred when Americans of Japanese ancestry were interned 
during World War II. The recommendation that section 1383 be 
repealed stems from the committee's conviction that such powers 
are inappropriate in peacetime and that repeal is consistent with 
previous congressional action. 

Subsection (f) strikes subsections (b), (c), (d), (e) ? and (f) 
of section 6 of the act of February 28, 1948, the Public Health 
Service Act, which deals with the promotion of Public Health 
Service officers. The committee was advised that the provisions 
are obsolete. 

Subsection (g) repeals section 9 of the 1946 Merchant Ship 

Sales Act, which "deals with price adjustment for prior sales to 

citizens of the United States. The committee has been advised that 

the section has no current application. 

Section 502 exempts certain provisions of law from the force of the 

legislation, subject to further investigation by the standing committees 

of the House and Senate. 

The exempted laws were enacted to meet emergency situations. Be- 
cause of the prolongation of emergency rule in the United States, many 
government departments have come to depend on these laws for their 
day-to-day operations. As a result, abrupt termination of such pro- 
visions would disrupt activities deemed to be essential to the function- 
ing of the government. To avoid such disruption and to allow careful 
consideration of the statutes in question and enactment of permanent 
law where appropriate, the committee recommends that these au- 
thorities be exempted from the effect of the legislation. 

Under section 502(a), the following provisions of law are exempted 
from the force of this act : 

Clause 1 lists section 5(b) of the act of October 6, 1917, the 
Trading with the Enemy Act [12 U.S.C. 95a and 50 U.S.C. App. 
5(b)]. At hearings, administration spokesmen cited the continu- 
ing importance of section 5(b) which provides for the adminis- 
tration and regulation of both transactions in foreign exchange 
of gold and silver and property transfers in which any foreign 
country or national thereof has an interest". 

Clause 2 continues in effect the provisions of the act of April 28, 
1942 (40 U.S.C. 278b). This act provides for an exception to the 
existing provisions of law concerning maximum rental of leases 
in cases relating to vital leases during a war or national emer- 
gency. The GSA requested the continuation of the authority until 
permanent legislation to the same effect can be enacted. 

Clause 3 continues in effect the provisions of the act of June 30, 
1949 (41 U.S.C. 252). Subsection (c) (1) of the act contains an ex- 
ception to a requirement of advertising purchases or contracts 
when it is determined to be in the public interest during a period 
of national emergency. The GSA requested extension of this 
authority. 



297 



8 



Clauses 4 and 5 continue in effect sections 3477 and 3737 of the 
Revised Statutes (31 U.S.C. 203 and 41 U.S.C. 15). Both sections 
concern the assignment of claims. The GSA requested continua- 
tion of the authorities since they have proven important in the 
financing of government contracts. These sections permit claims 
for money due or to become due a contractor with the government 
to be assigned to a bank, trust company or other financial 
institution. 

Clauses 6 and 7 extend the authoritv provided in Public Law 
85-804 (50 U.S.C. 1431-1435) and section 2304(a) (1) of title 10, 
United States Code. The authorities concern the amendment of 
military contracts and the suspension of normal bidding require- 
ments. 

Clause 8 continues the provisions set forth in sections 3313, 6386 
(c) , and 83l£ of title 10, United States Code. These three sections 
provide the authority to maintain MIAs on active duty until their 
status is finally determined. 
In section 502(b) the appropriate standing committees of the House 
and Senate are directed to investigate the authorities continued in sec- 
tion 502(a) and to make recommendations with respect thereto within 
270 days following the enactment of the National Emergencies Act. 

The circumstances under which most of these laws were enacted, 
and their subsequent usage often in ways not envisioned in the origi- 
nal legislative histories, underline the necessity for immediate review 
and evaluation of these statutes. 

History of Legislation 

At the beginning of the 92d Congress, interest was expressed in the 
Senate in examining emergency powers available to the Executive. 
Thereafter, Senator Charles McC. Mathias, Jr., introduced Senate 
Concurrent Resolution 27 to establish a special joint committee to 
study the effect of terminating the state of emergency declared by 
President Truman in 1950 during the Korean War. In May 1972, 
Senator Mathias and Senator Frank Church introduced a Senate res- 
olution calling for the creation of a Senate Special Committee on the 
Termination of the National Emergency. The resolution was subse- 
quently approved, and the special committee began work on January 
6, 1973. Senators Mathias and Church were designated as cochairmen, 
and Senators Hart, Pell. Stevenson, Case, Pearson, and Hansen were 
appointed to the committee. The mandate of the committee, as ex- 
pressed in its authorizing resolution (S. Res. 9), was 

to conduct a study and investigation with respect to the mat- 
ter of terminating the national emergency proclaimed by the 
President of the United States on December 16, 1950, as 
announced in Presidential Proclamation Numbered 2914, 
dated the same date. 

Enlisting the aid of legal scholars, executive departments and agen- 
cies, and the Library of Congress, the special committee launched an 
extensive study. The committee held three sets of public hearings on the 
history of emergency government in the United States and constitu- 
tional problems created thereby. 



298 



9 



The committee found that the whole field of emergency statutes and 
procedures was in disarray. Four emergency proclamations, issued in 
1933, 1950, 1970, and 1971, had never been revoked ; there was little 
historical guidance for declaring, administering, or terminating states 
of national emergency; and no current, comprehensive record of 
statutes effective during times of emergency existed. The enlarged task 
that the committee confronted led to its being redesignated the Special 
Committee on National Emergencies and Delegated Emergency 
Powers. 

The committee has since issued several publications designed to 
provide an understanding of national emergency laws and procedures 
and provide the basis for legislation. One compilation provides a listing 
of "Emergency Power Statutes: Provisions of Federal Law Now in 
Effect Delegating to the Executive Extraordinary Authority in Time 
of National Emergency" (S. Rept. 93-549). This report lists all the 
statutes which could be utilized under a declaration of national emer- 
gency as well as similar authority, not dependent on a declaration of 
emergency. To make such a compilation, the committee relied upon 
the Air Force's LITE system to conduct a computer search of the 
United States Code and studied all 87 volumes of the statutes-at-large. 

A second document, "Executive Orders in Times of War and Na- 
tional Emergency," is the result of an examination of the collections of 
proclamations and Executive orders found at the Library of Congress 
and the Federal Register. In addition, "A Brief History of Emergency 
Powers in the United States," prepared by the Library of Congress, 
was issued as a committee print. The committee also published a hand- 
book containing evaluations of all emergency statutes. These evalua- 
tions were made by standing committees of the Senate and by executive 
departments and agencies. 

The culmination of the special committee's efforts was the National 
Emergencies Act. Introduced by the Senate special committee on 
August 2, 1974, S. 3957 was sponsored by Senators Church, Mathias, 
Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin, Chiles, Williams, 
Muskie, Javits, Ribicoff, and Roth. The Senate Committee on Govern- 
ment Operations reported the bill without amendment on Septem- 
ber 30, 1974 (S. Rept. 93-1193). On October 7, 1974, during debate 
on the measure in the Senate, Senator Mathias offered amendments 
incorporating changes recommended by the Office of Management and 
Budget and agreed to by the Government Operations Committee. The 
amendments provided for : 

(1) Extension of the termination date for existing emergencies 
from nine to twelve months from enactment ; 

(2) A semiannual review and decision by Congress on whether 
to end an emergency, rather than automatic termination of states 
of emergency ; 

(3) Reduction of the number of statutes to be repealed; 

(4) Exemption of six statutes considered essential by the execu- 
tive branch and provision for their review by appropriate con- 
gressional committees ; 

(5) Requirements for an accounting of expenditures incurred 
in the exercise of national emergency statutes. 



299 



10 



The amended legislation passed the Senate by voice vote on October 
7, 1974, and was referred to the House Committee on the Judiciary 
which took no further action. On March 6, 1975, Senator Mathias, for 
himself and Senator Church, introduced S. 977, which is nearly identi- 
cal to S. 3957 of the 93d Congress. At the same time, Representative 
Rodino introduced an identical bill, H.R. 3884, which was referred to 
the House Judiciary Committee. H.R, 3884 was amended by the House 
Judiciary Committee and passed the House on September 4, 1975, with 
some floor amendments. 

Hearings 

The committee held hearings on H.R. 3884 on February 25, 1976. 
Senators Church and Mathias appeared in support of the measure. 
Their testimony was related primarily to an analysis and summary of 
the problems sought to be resolved by the legislation and a review of 
their work as co-chairmen of the Senate Special Committee on Na- 
tional Emergencies and Delegated Emergency Powers. In addition, 
several communications relative to the measure were inserted in the 
hearing record. 

Section-By-Section Analysis 

H.R. 3884, the National Emergencies Act, contains five titles. 

TITLE I TERMINATING EXISTING DECLARED EMERGENCIES 

Section 101 provides for the termination of all powers and authori- 
ties conferred by statutes dependent upon a declared state of national 
emergency. A 2-year delay in the effective date of the termination of 
emergency powers and authorities is designed to allow time to enact 
permanent law where needed. The section defines "any national emer- 
gency in effect" as any one declared by the President. 

TITLE II DECLARATIONS OF FUTURE NATIONAL EMERGENCIES 

Subsection (a) of section 201 provides that with respect to Acts of 
Congress authorizing the exercise, during a period of a national emer- 
gency, of any special or extraordinary power, the President is author- 
ized to declare such a national emergency. Any such proclamation 
must be "transmitted to the Congress and published in the Federal 
Register." 

Subsection (b) declares that any statute that becomes effective in 
time of declared national emergency, shall only be lawful if the pro- 
visions of this act are complied with. No future act will supersede this 
act unless it does so in specific terms and declares that the purposes of 
the new law is to supersede provisions of this act. 

Section 202 provides for the termination of a declared state of 
emergency, either by the Congress by concurrent resolution, or by 
Presidential proclamation. Congress would consider concurrent reso- 
lutions at 6-month intervals. This section sets forth the procedures 
to be followed by Congress in considering these resolutions, and pro- 
vides that they are to be deemed a part of the rules of each House. 
A final clause provides that any national emergency declared by the 
President, not otherwise previously terminated, "shall terminate on 



300 



11 

the anniversary of the declaration of that emergency if, within the 
90-day period prior to each anniversary date, the President does not 
publish in the Federal Register and transmit to the Congress a notice 
stating that the emergency is still in effect." 

TITLE m — EXERCISE OP EMERGENCY POWERS AND AUTHORITIES 

Section 301 provides that when the President declares a national 
emergency, no powers or authorities made available by statute shall 
be exercised unless and until the President specifies the provisions of 
law under which he will act. While specification may be made in the 
declaration or in one or more contemporaneous or subsequent Execu- 
tive orders, no powers may be made available until such specification. 

TITLE IV — ACCOUNTABILITY AND REPORTING REQUIREMENTS OF 
THE PRESIDENT 

Section 401 provides that when the President declares a national 
emergency, or the Congress declares war, the President shall main- 
tain a file and index of all significant Presidential orders and each 
executive agency shall maintain a file of all rules and regulations 
issued during the emergency or war. These orders, rules, and regula- 
tions are to be transmitted to the Congress. This section further re- 
quires that, after the declaration of a national emergency or declara- 
tion of war, the President shall transmit to the Congress, within 90 
days after each 6-month period following a declaration, a report of 
total expenditures which are attributable to powers and authorities 
exercised under such declarations. A final report is required not later 
than 90 days after the termination of the emergency or war. 

TITLE V REPEAL AND CONTINUATION OF CERTAIN EMERGENCY POWER 

AND OTHER STATUTES 

Sections 501 and 502 repeal and continue in effect certain stated 
emergency powers and other statutes as appropriate. 

Agency Comments 

Agency interests and concerns were coordinated by the special com- 
mittee in connection with the drafting and consideration of the 93d 
Congress bill, S. 3957, which passed the Senate in October 1974. Most 
of the coordinating work was performed in cooperation with the Office 
of Management and Budget and the Department of Justice. 

In the 94th Congress, this committee solicited comments from vari- 
ous agencies and departments. Where appropriate, some of their rec- 
ommendations were incorporated in S. 977, the companion bill to 
H.R. 3884. These comments are set forth in Appendix B. ' 

Estimated Cost of Legislation 

It is not expected that enactment of this legislation will require any 
significant additional expenditures. 



301 

12 

Changes in Existing Law 

In compliance with subsection 4 of rule XXIX of the Standing 
Kules of the Senate, changes made by the bill as reported are shown 
as follows (existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in which no 
changes is proposed is shown in roman) : 



TITLE 8— ALIENS AND NATIONALITY, UNITED STATES 

CODE 



Part III — Loss of Nationality 

§ 1481. Loss of nationality by native-born or naturalized citizen ; 
voluntary action ; burden of proof ; presumptions, 

(a) From and after the effective date of this chapter a person who 
is a national of the United States whether by birth or naturalization, 
shall lose his nationality by — 

(1) * * *• 
******* 

[(10) departing from or remaining outside of the jurisdiction of 
the United States in time of war or during a period declared by the 
President to be a period of national emergency for the purpose of 
evading or avoiding training and service in the military, air, or naval 
forces of the United States. For the purposes of this paragraph failure 
to comply with any provision of any compulsory service laws of the 
United States shall raise the presumption that the departure from or 
absence from the United States was for the purpose of evading or 
avoiding training and service in the military, air, or naval forces of 
the United States.] 

TITLE 10— ARMED FORCES, UNITED STATES CODE 



Chapter 159— REAL PROPERTY; RELATED PERSONAL 
PROPERTY; AND LEASE OF NON-EXCESS PROPERTY 
******* 
§2667. Leases: non-excess property. 

(a) * * •. 
******* 

(b) A lease under subsection (a) — 
(1) * * *. 



302 



13 



[(4) must be revocable by the Secretary during a national emer- 
gency declared by the President ; and] 

******* 



TITLE 12— BANKS AND BANKING, UNITED STATES 

CODE 



Chapter 3— FEDERAL RESERVE SYSTEM 

DEFINITIONS, ORGANIZATION, AND GENERAL PROVISIONS AFFECTING 

SYSTEM 



[§249. Regulation of consumer credit. 

[After November 1, 1947, the Board of Governors of the Federal 
Reserve System shall not exercise consumer credit controls pursuant 
to Executive Order Numbered 8843, and no such consumer credit con- 
trols shall be exercised after such date except during the time of war 
beginning after August 8, 1947, or any national emergency declared 
by the President after August 8, 1947.] 



TITLE 16— CONSERVATION, UNITED STATES CODE 
******* 

Chapter 12A— TENNESSEE VALLEY AUTHORITY 
******* 

§831d. Directors; maintenance and operation of plant for pro- 
duction, sale, and distribution of fertilizer and power. 

The board is authorized — 
(a) * * *. 
******* 

[(m) No products of the Corporation except ferrophosphorus shall 
be sold for use outside of the United States, its Territories and pos- 
sessions, except to the United States Government for the use of its 
Army and Navy, or to its allies in case of war or, until six months 
after the termination of the national emergency proclaimed by the 
President on December 16, 1950, or until such earlier date or dates as 
the Congress by concurrent resolution or the President may provide 
but in no event after April 1, 1953, to nations associated with the 
United States in defense activities.] 



303 



14 



TITLE 18— CRIMES AND CRIMINAL PROCEDURE, 
UNITED STATES CODES 



Chapter 67— MILITARY AND NAVY 

[§1383. Restrictions in military areas and zones. 

[Whoever, contrary to the restrictions applicable thereto, enters, 
remains in, leaves, or commits any act in any military area or military 
zone prescribed under the authority of an Executive order of the 
President, by the Secretary of the Army, or by any military com- 
mander designated by the Secretary of the Army, shall, if it appears 
that he knew or should have known of the existence and extent of the 
restrictions or order and that his act was in violation thereof, be fined 
not more than $5,000 or imprisoned not more than one year, or both.J 



TITLE 42— THE PUBLIC HEALTH AND WELFARE, 
UNITED STATES CODE 



§211a. 



Chapter 6A— THE PUBLIC HEALTH SERVICE 

SUBCHAPTER I ADMINISTRATION 



* * * 



[§211b. Promotion of commissioned officers, 
[(a) Temporary promotions prior to July 1, 1948. 

[Except as provided in the third and fourth paragraphs of this 
section, no promotion shall be made under section 211 of this title, 
prior to July 1, 1948. Until that date officers of the Regular Corps may 
receive temporary promotions to higher grades with the pay and 
allowances thereof pursuant to section 211(a)(1) of this title in 
force prior to February 28, 1948, notwithstanding the termination, 
prior to such date, of the war and of the national emergencies pro- 
claimed by the President. Any officer holding, on June 30, 1948, an ap- 
pointment pursuant to such section to a higher temporary grade shall 
continue in such grade until such appointment is terminated, as the 
President may direct. 

[(b) Service credit. 

[Effective as of February 28, 1948, each officer of the Regular Corps 
on such date, in addition to the credit he has under preexisting legis- 
lation for purposes of promotion, shall be credited with three years of 
service. 



304 



15 



[(c) Promotion based on years of service; effective date; exam- 
ination; service credit. 

[Officers of the Regular Corps who have, or who on or before July 1, 
1948, will have, the years of service prescribed in paragraph (2) of 
section 211(d) of this title, for promotion to the senior assistant, full, 
or senior grade, shall be recommended to the President for such pro- 
motion, to be effective as of July 1, 1948, whether or not vacancies 
exist in such grade. Such promotions shall be made without examina- 
tion, except that no promotions shall be made to the senior grade or 
any grade immediately below a restricted grade until the officer is; 
found qualified for promotion pursuant to subsection (c) of section 211 
of this title. No promotion shall be made pursuant to this paragraph to 
any grade in any professional category if such grade has been made 
a restricted grade pursuant to subsection (b) of section 211 of this 
title. For purposes of seniority an officer promoted under this para- 
graph shall be credited with the years of service in the grade to which 
promoted equal to the excess of his years of service on the date of 
promotion over the years of service required for promotion to such 
grade under paragraph (2) of section 211(d) of this title. 

[Officers in the junior assistant grade in the Regular Corps who 
have, or who on or before July 1, 1948, will have four or more years 
of service in the junior assistant grade, shall be recommended to the 
President for promotion to the assistant grade, to be effective as of 
July 1, 1948, without examination and whether or not vacancies exist 
in such grade. For purposes of promotion and seniority in grade, an 
officer promoted under this paragraph shall be credited with the years 
of service equal to the excess of his years of service on the date of pro- 
motion over four years. 

[(d) Service for purpose of seniority. 

[For purposes of seniority, any officer of the Regular Corps of the 
Public Health Service on February 28, 1948, shall be considered as 
having had service in the grade which he holds on such date equal to 
the excess of the service credited to him for promotion purposes over 
the length of service required under section 211(d) (2) of this title, 
for promotion to such grade. 

[(e) Term or tenure of office unaffected prior to July 1, 1948. 

[Except as provided in the third and fourth paragraphs of this sec- 
tion, the provisions of this section shall not, prior to July 1, 1948, 
affect the term or tenure of office (including any office held under 
temporary promotion) of anv commissioned officer of the Service in 
office upon February 28, 1948. j 



TITLE 50, APPENDIX—WAR AND NATIONAL DEFENSE, 

U.S. CODE 



305 



16 

SALE OF SURPLUS WAK-BUILT VESSELS 

(Act Mar. 8, 1946, Ch. 82, Stat. 41) 



[§ 1742. Price adjustment on prior sales to citizens, 
[(a) Form, manner, and time of application. 

[A citizen of the United States who on the date of the enactment of 
this Act [March 8, 1946]— 

[(1) owns a vessel which he purchased from the Commission 
prior to such date, and which was delivered by its builder after 
December 31, 1940 ; or 

[(2) is party to a contract with the Commission to purchase 
from the Commission a vessel, which has not yet been delivered 
to him ; or 

[(3) owns a vessel on account of which a construction-differen- 
tial subsidy was paid, or agreed to be paid, by the Commission 
under section 504 of the Merchant Marine Act, 1936, as amended 
[section 1154 of Title 46], and which was delivered by its builder 
after December 31, 1940 ; or 

[(4) is party to a contract with a shipbuilder for the construc- 
tion for him of a vessel, which has not yet been delivered to him, 
and on account of which a construction-differential subsidy was 
agreed, prior to such date, to be paid by the Commission under 
section 504 of the Merchant Marine Act, 1936, as amended [sec- 
tion 1154 of Title 46] , 
shall, except as hereinafter provided, be entitled to an adjustment in 
the price of such vessel under this section if he makes application 
therefor, in such form and manner as the Commission may prescribe, 
within sixty days after the date of publication of the applicaable pre- 
war domestic costs in the Federal Register under section 3(c) of this 
Act [section 1736(c) of this Appendix]. No adjustment shall be made 
under this section in respect of any vessel the contract for the con- 
struction of which was made after September 2, 1945, under the provi- 
sions of title V [subchapter V of chapter 27 of Title 46] (including 
section 504 [section 1154 of Title 46] of title VII of the Merchant 
Marine Act, 1936, as amended [subchapter VII of chapter 27 of 
Title 46]. 

[(b) Determination of amount. 

[Such adjustment shall be made, as hereinafter provided, by treat- 
ing the vessel as if it were being sold to the applicant on the date of 
the enactment of this Act [March 8, 1946], and not before that time. 
The amount of such adjustment shall be determined as follows : 

[(1) The Commission shall credit the applicant with the excess 
of the cash payments made upon the original purchase price of the 
vessel over 25 per centum of the statutory sales price of the vessel 
as of such date of enactment [March 8, 1946]. If such pay- 
ment was less than 25 per centum of the statutory sales price 
of the vessel, the applicant shall pay the difference to the 
Commission. 



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17 



[(2) The applicant's indebtedness under any mortgage to the 
United States with respect to the vessel shall be adjusted. 

[ ( 3 ) The ad j usted mortgage indebtedness shall be in an amount 
equal to the excess of the statutory sales price of the vessel as of 
the date of the enactment of this Act [March 8, 1946] over the 
sum of the cash payment retained by the United States under y 
paragraph (1) plus the readjusted trade-in allowance (deter- 
mined under paragraph (7) ) with respect to any vessel exchanged 
by the applicant on the original purchase. The adjusted mortgage 
indebtedness shall be payable in equal annual installments there- 
after during the remaining life of such mortgage with interest on 
the portion of the statutory sales price remaining unpaid at the 
rate of 3!/2 per centum per annum, 

[ (4) The Commission shall credit the applicant with the excess, 
if any, of the sum of the cash payments made by the applicant 
upon the original purchase price of the vessel plus the readjusted 
trade-in allowance (determined under paragraph (7)) over the 
statutory sales price of the vessel as of the date of the enactment 
of this Act [March 8, 1946] to the extent not credited under 
paragraph (1). 

[(5) The Commission shall also credit the applicant with an 
amount equal to interest at the rate of 3^ per centum per annum 
(for the period beginning with the date of the original delivery 
of the vessel to the applicant and ending with the date of the en- 
actment of this Act [March 8, 1946] ) on the excess of the original 
purchase price of the vessel over the amount of any allowance 
allowed by the Commission on the exchange of any vessel on such 
purchase; the amount of such credit first being reduced by any 
interest on the original mortgage indebtedness accrued up to such 
date of enactment and unpaid. Interest so accrued and unpaid 
shall be canceled. 

[(6) The applicant shall credit the Commission with all 
amounts paid by the United States to him as charter hire for use 
of the vessel (exclusive of service, any, required under the terms 
of the charter) under any charter party made prior to the date of 
the enactment of this Act [March 8, 1946], and any charter hire 
for such use accrued up to such date of enactment and unpaid shall 
be canceled; and the commission shall credit the applicant with 
the amount that would have been paid by the United States to the 
applicant as charter hire for bare-boat use of vessels exchanged 
by the applicant on the original purchase (for the period begin- 
ning with date on which the vessels so exchanged were delivered 
to the Commission and ending with the date of the enactment of 
this Act [March 8, 1946]). 

[(7) The allowance made to the applicant on any vessel ex- 
changed by him on the original purchase shall be readjusted so as 
to limit such allowance to the amount provided for under section 
8 [section 1741 of this Appendix]. 

[(8) There shall be subtracted from the sum of the credits in 
favor of the Commission under the foregoing provisions of this 
subsection the amount of any overpayments of Federal taxes by 
the applicant resulting from the application of subsection (c) (1) 
of this section, and there shall be subtracted from the sum of the 



307 



18 

credits in favor of the applicant under the foregoing provisions 
of this subsection the amount of any deficiencies in Federal taxes 
of the applicant, resulting from the application of subsection 
(c) (1) of this section. If. after making such subtractions, the sum 
of the credits in favor of the applicant exceeds the sum of the 
credits in favor of the Commission, such excess shall be paid by 
the Commission to the applicant. If, after making such subtrac- 
tions, the sum of the credits in favor of the Commission exceeds 
the sum of the credits in favor of the applicant, such excess shall 
be paid by the applicant to the Commission. Upon such payment 
by the Commission or the applicant, such overpayments shall be 
treated as having been refunded and such deficiencies as having 
been paid. 
[For the purposes of this subsection, the purchase price of a vessel on 
account of which a construction-differential subsidy was paid or 
agreed to be paid under section 504 of the Merchant Marine Act, 1936, 
as amended [section 1154 of Title 46], shall be the net cost of the 
vessel to the owner. 

[(c) Conditions binding on applicant. 

[An adjustment shall be made under this section only if the appli- 
cant enters into an agreement with the Commission binding upon the 
citizen applicant and any affiliated interest to the effect that— 

[(1) depreciation and amortization allowed or allowable with 
re.-pect to the vessel up to the date of the enactment of this Act 
[March 8, 1946] for Federal tax purposes shall be treated as not 
having been allowable; amounts credited to the Commission un- 
der subsection (b)(6) of this section sha.ll be treated for Fed- 
eral tax purposes as not having been received or accrued as 
income; amounts credited to the applicant under subsection (b) 
(5) and (6) of this section shall be treated for Federal tax pur- 
poses as having been received and accrued as income in the taxable 
year in which falls the date of the enactment of this Act [March 8, 
1946] ; 

[(2) the liability of the United States for use (exclusive of 
service, if any. required under the terms of the charter) of the 
vessel on or after the date of the enactment of this Act [March 8, 
1946] under any charter party shall not exceed 15 per centum 
per annum of the statutory sales price of the vessel as of such date 
of enactment [March 8. 1946] and the liability of the United 
States under any such charter party for loss of the vessel shall 
be determined on the basis of the statutory sales price as of the 
date of the enactment of this Act [March 8, 1946], depreciated 
• to the date of loss at the rate of 5 per centum per annum : Provided. 
That the provisions of this subsection (c) (2) [of this section] 
shall not apply to any such charter party executed on or after the 
date of enactment of this amendatory proviso [August 6, 1956] ; 
and the Secretary of Commerce is directed to modify any ad- 
justment agreement to the extent necessary to conform to the 
provisions of this amendatory proviso; and 

[(3) in the event the United States, prior to the termination 
of the existing national emergency declared bv the President on 



308 



19 



May 27, 1941, uses such vessel pursuant to a taking, or pursuant to 
a bare-boat charter made, on or after the date of the enactment 
of this Act [March 8, 1946] ; the compensation to be paid to the 
purchaser, his receivers, trustees, shall in no event be greater than 
15 per centum per annum of the statutory sales price as of such 
date. 

[(d) Applicability of other laws. 

[Section 506 of the Merchant Marine Act, 1936, as amended [section 
1156 of Title 46], shall not apply with respect to (1) any vessel which 
is eligible for an adjustment under this section, or (2) any vessel de- 
scribed in clause (1), (2), (3), or (4) of subsection (a) of this section, 
the contract for the construction of which is made after September 2, 
1945, and prior to the date of enactment of this Act [March 8, 1946].] 

Rollcall Vote in Committee 

In compliance with section 133 of the Legislative Reorganization 
Act of 1946, as amended, the rollcall vote taken during committee con- 
sideration of this legislation is as follows : 

Yeas: (10) Nays: (0) 

McClellan 
Muskie 
Chiles 
Nunn 
Glenn 
Percy 
Javits 
Brock 
Roth 
Ribicoff 






309 



APPENDIX A 

Central Intelligence Agency, 

Washington, B.C., 
September 19, 1975. 
Hon. Abraham Kibicoff, 

Chairman, Committee on Government Operations, U.S. Senate, 
Washington, D.C. 
Dear Mr. Chairman: This is in response to your request for the 
views and recommendations of this Agency on S. 977, the "National 
Emergencies Act." The act would terminate those national emergencies 
presently in effect, and establish procedures for the establishment, op- 
eration, and termination of future declared national emergencies. 

The Central Intelligence Agency derives its responsibilities and au- 
tority from 50 U.S.C. 403, et seq. It would not be affected by the termi- 
nation of existing states of national emergency. Therefore, I have no 
comment on the bill, except for section 501. 

Section 501 of the bill establishes accountability and reporting re- 
quirements for the President and Federal agencies during a declared 
state of war or national emergency. Subsections (a) and (b) require 
Executive agencies to maintain a file and index of all rules and regu- 
lations issued pursuant to declarations of war or national emergency. 
These rules and regulations are to be transmitted to the Congress 
promptly under means to assure confidentiality where appropriate. I 
have no objection to this provision, with the understanding that 
Agency activities conducted pursuant to 50 U.S.C. 403, although oc- 
curring during a declared state of war or national emergency, are not 
covered by section 501 of S. 977 but are reported to the Congress under 
normal procedures. 

The Office of Management and Budget has advised there is no ob- 
jection to the submission of this report from the standpoint of the Ad- 
ministration's program. 
Sincerely, 

W. E. Colby, 

Director. 

U.S. Senate, 
Special Committee on National Emergencies 

and Delegated Emergency Powers, 

Washington, D.C, March 1, 1976. 
Hon. Abraham Kibicoff, 

Chairman, Committee on Governmental Operations, Dirksen Senate 

Office Building, Washington, D.C. 

Dear Senator Ribicoff: I understand that William Colby, while 

Director of the CIA, wrote the Government Operations Committee of 

the U.S. Senate to the effect that CIA activities conducted pursuant to 

(20) 



310 



21 



50 U.S.C. 403, although occurring during a state of war or national 
emergency, would not be covered by the reporting requirement of the 
National Emergencies Act but would be reported to the Congress 
under other procedures which he did not detail. 

Section 403 of title 50 of the United States Code, the basic charter of 
the CIA, does not exempt the CIA from the reporting provisions of 
the National Emergencies Act. The reporting exemptions which are 
contained in that section were designed to prevent disclosure in an of- 
ficial U.S. Government publication, of information which would re- 
veal the size or personnel strength of the CIA. The National Emer- 
gencies Act does not require the public reporting of such classified 
information. 

The agency is, however, properly concerned about disclosure of clas- 
sified information. The National Emergencies Act specifically provides 
that rules and regulations covered by the act "shall be transmitted to 
the Congress promptly under means to assure confidentiality where 
appropriate." The proper course is to stipulate that the CIA need only 
report its rules and regulations to the appropriate oversight commit- 
tee — in the case of the Senate, the oversight committee which the Gov- 
ernment Operations Committee will shortly recommend be established 
for the CIA. 

I would also draw attention to the fact that the National Emer- 
gencies Act requires that only regulations issued "pursuant to a na- 
tional emergency" be reported, not that all such authorities be made 
available. In the case of the Central Intelligence Agency, these new 
rules and regulations are likely to be quite limited. 
Sincerely, 

Frank Church. 



311 



APPENDIX B 

Executive Office of the President, 
Office of Management and Budget, 

Washington, D.C., September 15, 1975 
Hon. Abraham Ribicof, 

Chairman, Committee on Government Operations, 
U.S. Senate, Washington, D.C. 

Dear Mr. Chairman : This is in reply to your request of April 22, 
1975, for the views of the Office of Management and Budget on S. 977, 
a bill "To terminate certain authorities with respect to national emer- 
gencies still in effect, and to provide for orderly implementation and 
termination of future national emergencies." 

S. 977 is substantially similar to H.R. 3884 which was passed in the 
House on September 4, 1975, and referred to your committee on Sep- 
tember 5, 1975. While the provisions of S. 977 are generally acceptable, 
the House bill incorporates a number of amendments proposed by the 
executive branch. 

Both bills, however, contain one feature in common which the Ad- 
ministration does not support. Section 202(a) (1) of each bill provides 
that Congress can terminate future, Presidentially-declared national 
emergencies by concurrent resolution. As you know, the executive 
branch, on many previous occasions, has objected to the use of similar 
concurrent resolution provisions in legislation on constitutional 
grounds because such provisions circumvent the President's role in 
the legislative process as provided in article I, section 7 of the 
Constitution. 

Finally, in addition to the emergency authorities in existing law 
which would be excepted from termination under the provisions of 
either S. 977 or H.R. 3884, several Departments, such as the Depart- 
ment of Transportation, have proposed that certain other emergency 
authorities should be similarly exempt. 

Accordingly, except for the concurrent resolution provision dis- 
cussed above, and subject to the Committee's consideration of the 
additional authorities proposed for exclusion from a general termina- 
tion of current emergency powers, the Office of Management and 
Budget would have no objection to enactment of either S. 977 or 
H.R. 3884. 

Sincerely, 

James M. Fret, 
Assistant Director for Legislative Reference. 
(22) 



312 



23 



Comptroller General of the United States, 

Washington, D.C., August 6, 1976. 
B-178364. 

Hon. Abraham Ribicoff, 

Chairman, Committee on Government Operations, 
U.S. Senate. 

Dear Mr. Chairman : This is in response to your request of April 
22, 1975, for our views on S. 977, 94th Congress, a bill to terminate 
certain authorities with respect to national emergencies still in effect 
and to provide for orderly implementation and termination of future 
national emergencies. 

Section 602(a) (4) provides that the provisions of the proposed bill 
do not apply to the powers and authorities conferred by the Act of 
June 30, 1949 (41 U.S.C. § 252). The authority conferred upon Execu- 
tive agencies (except the Department of Defense, the Coast Guard 
and the National Aeronautics and Space Administration) by 41 
U.S.C. § 252(c) (1) is used to negotiate contracts without advertising 
to assist labor surplus areas, to unilaterally set-aside contracts with 
small business concerns and to further the U.S. Balance of Payments 
Program. Similar authority is provided to the Departments of the 
Army, the Navy and the Air Force, the Coast Guard and the National 
Aeronautics and Space Administration by 10 U.S.C. § 2304(a)(1) 
(1970). This exception to advertising requirements is used for labor 
surplus set-aside programs, disaster area programs, small business 
set-asides after unilateral determinations and Balance of Payments 
Restricted Advertising. The authority of section 2304(a)(1) is not 
excluded from the provisions of the bill, and if the bill is enacted, 
legislation will be necessary for these agencies to continue the above- 
mentioned programs where no other negotiating authority is avail- 
able. The committee may wish to consider exempting the powers and 
authorities of 10 U.S.C. § 2304 from the provisions of S. 977. 

We note that, if enacted, the proposed bill will eliminate the power 
of the President to authorize Government agencies that exercise func- 
tions in connection with the national defense to enter into, amend, or 
modify contracts without regard to other provisions of law, conferred 
by Pub. L. No. 85-804 (Act of August 28, 1958, 72 Stat. 972, 50 U.S.C. 
§§ 1431-35). The Commission on Government Procurement (with one 
Commissioner dissenting) recommended that this authority be made 
permanent and not be limited to periods of national emergency. See 
Report of Commission on Government Procurement, Volume 4, pp. 
51-60. 

The objective of providing regular and consistent procedures by 
which national emergency powers are called into force and terminated, 
thereby according greater visibility and improving the exercise of 
effective congressional oversight, is one which we favor. 
Sincerely yours, 

R. F. Keller, 
Deputy Comptroller General of the United States. 



313 



24 



General Counsel of the Department of Defense, 

Washington, B.C., February 23, 1976. 

Hon. Abraham A. Ribicoff, 

Chairman, Committee on Government Operations, 

U.S. Senate, Washington, D.C. 

Dear Mr. Chairman : This is in reply to your request for an ex- 
pression of the views of the Department of Defense on S. 977, 94th 
Congress , an Act "To terminate certain authorities with respect to na- 
tional emergencies still in effect, and to provide for orderly imple- 
mentation and termination of future national emergencies." 

S. 977 would terminate, one year after its enactment, any authority 
conferred on an executive or other federal agency by law or executive 
order as a result of the existence of a state of national emergency on 
the date of enactment. The bill would authorize the President, upon 
certain findings, to proclaim the existence of a future national emer- 
gency but would require the proclamation to be transmitted to Con- 
gress and published in the Federal Register. Such a future national 
emergency would terminate upon a concurrent resolution by Con- 
gress or by a proclamation of the President. Thus a future national 
emergency could be terminated by either Congress or the President. 

As a prerequisite to the exercise of any powers or authorities made 
available by statute for use in the event of an emergency, the bill 
would require the President to specify the provisions of law under 
which he or other officials of the Government propose to act. 

Enumeration of such powers and authorities would be required to 
be transmitted to Congress and published in the Federal Register. 
Further, the President would be required to maintain a file and index 
of all significant presidential orders and proclamations and each 
federal agency would be required to maintain a file or index of all 
rules and regulations issued during future national emergencies. 
Copies of all such presidential and federal agency issuances would be 
required to be transmitted to Congress promptly. 

World and national conditions have changed since President Tru- 
man officially proclaimed the state of national emergency in 1950 
incident to the commencement of hostilities in Korea. Many authorities 
which were used then for the first time were regarded as extraor- 
dinary. Since then, experience has demonstrated a need for these 
authorities in the regular conduct of the day-to-day operations of the 
Department of Defense. The desirability of terminating existing 
states of emergency is recognized and no objection to their termina- 
tion is entertained by the Department of Defense. However, there are 
certain continuing needs, outlined below, which are accommodated by 
the existing national emergency proclaimed by President Truman in 
1950 but which are not specifically provided for in S. 977. 

First, there are 863 members of the armed forces who are still un- 
accounted for as a result of their participation in the recent hostilities 
in Southeast Asia. Although the Department of Defense is making 
every effort to resolve the uncertain status of these men, several fac- 
tors have hampered this effort so that it is not possible to predict the 
exact date by which their status will be finallv determined. One of 
these factors is the decree of a federal court in a'case styled McDonald 



314 



25 



v. McLucas which precludes the Secretaries of the military depart- 
ments from changing the status of those now classified as missing in 
action to killed in action until the primary next of kin are afforded an 
opportunity to attend a hearing with counsel to present whatever evi- 
dence they deem relevant and to examine service files. Only the emer- 
gency authority of 10 U.S. Code 3313, 6386 (c) and 8313 authorizes the 
suspension of mandatory separation and retirement requirements 
which would otherwise be applicable to allow some of these members 
to remain in the armed forces until they return or are accounted for. 
Whether or not their situation is viewed as warranting continuation 
of a national emergency, it would be inequitable to force their separa- 
tion or retirement while they are still unaccounted for. 

In the field of personnel administration, the emergency authority of 
10 U.S.C. 3444 and 8444 has been used to grant relief, by way of tem- 
porary appointment, to officers in the chaplain, judge advocate and 
medical fields who, because of constructive service credit in their spe- 
cialties, are considered for permanent promotion earlier than their 
line officer counterparts and whose separation for failure of promotion 
might become mandatory under conditions inconsistent with the needs 
of the armed forces or fairness to the officers. Legislation which would, 
among other things, provide a solution in permanent law for this 
problem has been introduced in the Congress (H.R. 7486 and S. 2424, 
Defense Officer Personnel Management Act, and H.R. 7769, Uni- 
formed Services Retirement Modernization Act) and hearings have 
begun on H.R. 7486. However, the legislative changes which these bills 
would effect are so extensive that it would not be realistic to expect 
early enactment. 

In addition to these problems which would result from allowing the 
emergency authority now provided by 10 U.S.C. 3444 and 8444 to 
lapse, the President, as commander in chief of the armed forces, would 
have no authority to grant temporary appointments to truly excep- 
tional officers of the Army or Air Force. For example, the President 
used this authority to extend a temporary appointment to the next 
higher grade to the Air Force astronauts who successfully completed 
suborbital or orbital flights. Continuation of this latitude is needed 
so that exceptional individual contributions can still be recognized 
through temporary appointments. 

Termination of emergency authority under 10 U.S.C. 3444 and 8444 
would also deny to the Army and Air Force the only authority avail- 
able in some cases to appoint alien doctors as officers to meet increas- 
ingly critical shortages of military medical personnel. 

Termination of the 1950 national emergency would also terminate 
entitlement to disability retirement or separation benefits under 10 
U.S.C. 1201 and 1203 for members with less than 8 years of service 
whose disability of 30 percent or more, although incurred in line of 
duty while on active duty, was not the proximate result of the per- 
formance of active duty. Imposition of this limitation — which would 
affect only the junior officers and enlisted men — is particularly un- 
timely when the armed forces are endeavoring to meet their manpower 
needs through voluntary means. Continuation of the authority to re- 
tire or separate military personnel with less than 8 years of service 
who become unfit for further service by reason of a disability incurred 
in line of duty, is needed as part of the military disability system. 



315 



26 

Termination of the national emergency would also terminate the 
authority of the Department of Defense (and certain other agencies) 
under Public Law 85-804 (50 U.S.C. 1431-1435) to correct mistakes 
in contracts, to formalize informal commitments, to indemnify con- 
tractors against losses or claims resulting from unusually hazardous 
risks to which they might be exposed during the performance of a 
contract and for which insurance, even if available, would be pro- 
hibitively expensive, and to grant other extraordinary contractual 
relief. Loss of the indemnification authority, in particular, would have 
an immediate adverse impact upon essential programs. During the 
calendar year 1974 the military departments included indemnification 
clauses under this authority in 128 contracts associated with nuclear- 
powered vessels, nuclear-armed guided missiles, experimental work 
with nuclear energy, handling of explosives and performance in haz- 
ardous areas. The Commission on Government Procurement, estab- 
lished by Public Law 91-129, has recommended that the authorizations 
of P.L. 85-804 be made available generally rather than being depend- 
ent upon the existence of a state of war or national emergency. But, 
here also, enactment of the Commission's recommendation in the near 
future does not appear likely. 

S. 977 would adversely affect defense contracting in another way, 
that is, in denying the emergency exception to the requirement for ad- 
vertising procurements not otherwise authorized to be negotiated. Cf. 
10 U.S.C. 2304(a) (1). This exception is now narrowly limited in its 
application by the pertinent Armed Services Procurement Regula- 
tion (32 CFR 3.201), but its application affects major social and eco- 
nomic policies — the policies to favor labor surplus and disaster areas 
and small business and to achieve a balance of payments favorable to 
the United States. 

Continuation of several emergency authorities governing personnel 
administration in the naval service is also needed. These authorities 
include 10 U.S.C. 5231(c), which suspends existing limitations on the 
number of admirals and vice admirals of the Navy. If this authority 
is not continued, the Navy would lose approximately one half of its 
three- and four-star admirals. Similarly, 10 U.S.C. 5232(b) suspends 
existing limitations on lieutenant generals of the Marine Corps. If this 
authority is not continued, the Marine Corps would lose six of the cur- 
rently authorized eight lieutenant generals. Section 5711(b) of title 
10 authorizes the suspension of the statutory limit of 5% below-the- 
zone selections specified in section 5707(c) . Continuation of the author- 
ity provided in 10 U.S.C. 5785(b) is needed to suspend time-in-grade 
Navy and Marine Corps requirements for promotion to all grades ex- 
cept lieutenant and lieutenant commander. This statute is also the au- 
thority for suspension of the mandatory line fraction for promotion of 
staff corps officers to grades below rear admiral. Section 5787 of title 
10 provides for temporary promotions in the Navy. Failure to retain 
this authority would require approximately 650 limited duty officers 
in the grade of lieutenant commander to revert to the grade of lieu- 
tenant. Discontinuance of this authority would also require Senate con- 
firmation of all Regular promotions to lieutenant (junior grade). 

In view of the need for continuation of the authorities referred to 
above, the Department of Defense recommends that any legislation 
terminating emergency powers exempt the cited statutes from its effect 



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in order to preserve the substantive provisions which are now needed 
but which would be lost by termination of the 1950 national emergency. 

On September 4, 1975, the House of Representatives passed H.R. 
3884, a bill that in its original form was virtually identical with S. 977. 
In the course of hearings on H.R. 3884 before the House Judiciary 
Committee's Subcommittee on Administrative Law and Governmental 
Relations, the Deputy General Counsel made a statement which pre- 
sented in detail the position of the Defense Department. For your con- 
venience a copy of his statement is enclosed. The House of Representa- 
tives adopted our recommendations with respect to needed exemptions 
in contracting authority (cf . pp. 2-4 of the statement) , continuation of 
the statutory emergency authority which suspends mandatory separa- 
tion and retirement as applied to those members of the armed forces 
who are still unaccounted for in Southeast Asia (cf. p. 7) ; deletion 
of the reference to section 673 of title 10, United States Code, as inap- 
propriate (cf. p. 8) ; and extension of the period for reporting to Con- 
gress the quarterly expenditures incurred in future national emergen- 
cies from thirty days after the end of each quarter to ninety days (cf. 
pp. 8-9). In addition, at our informal suggestion that provision of 
H.R. 3884 which would have terminated powers authorized by the ex- 
isting national emergency one year from the date of enactment was 
changed to provide for termination two years from the date of enact- 
ment. This longer grace period is needed to accommodate the orderly 
transition to normal procedures. It is strongly recommended that the 
Senate also adopt these changes which were concurred in by the House 
of Representatives. 

There were several other exemptions from the reach of H.R. 3884 
which were recommended by the Department of Defense but which 
were not accepted by the House of Representatives. These items relate 
to Defense organization (cf. pp. 4-7) and disability retirement or 
separation benefits for military members with less than eight years of 
service (cf. pp. 7-8). It is recommended that the Senate give favor- 
able consideration to these items. 

In general, the Department of Defense is in accord with the S. 977 
goal of repealing obsolete or unnecessary emergency laws. Therefore, 
subject to the foregoing reservations and recommendations, this De- 
partment does not object to enactment of S. 977. 

The Office of Management and Budget advises that, from the stand- 
point of the Administration's program, there is no objection to the 
submission of this report for the consideration of the Committee. 
Sincerely, 

Richard A. Wiley. 

Enclosure. 

Statement of Leonard Niederlehner, Deputy General Counsel, 
Department of Defense on H.R. 3884 

Mr. Chairman and Members of the Committee : I am very pleased 
to have the opportunity to offer comments of the Department of De- 
fense on H.R. 3884, "A Bill to terminate certain authorities with 
respect to National Emergencies still in effect, and to provide for 
orderly implementation and termination of future National 
Emergencies." 



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28 

The Department of Defense favors the goal of H.R. 3884 to termi- 
nate obsolete or unnecessary authorities based upon states of emer- 
gency. However, a relatively small number of the authorities currently 
dependent upon a state of emergency affect contracting procedures, 
personnel entitlements, and organizational structure of the Depart- 
ment of Defense; and it is believed that the Congress will want to 
enact permanent legislation to treat with these various subject matters. 
Legislative proposals have been made to the Congress dealing with 
most of these items and it is hoped that they will receive attention in 
the near future. However, we recommend that they be exempted from 
the broad sweep of the pending bill until such time as the Congress 
has an opportunity to consider whether, and in what form, these 
authorities should be enacted to permanent law. 

World and national conditions have changed since President Tru- 
man officially proclaimed the state of national emergency in 1950 in- 
cident to the commencement of hostilities in Korea. Many authorities 
which were used then for the first time were regarded as extraordinary. 
Since then, experience has demonstrated a need for these authorities 
in the regular conduct of the day-to-day operations of the Department 
of Defense. The desirability oi terminating existing states of emer- 
gency is recognized and no objection to their termination is en- 
tertained by the Department of Defense. However, there are certain 
continuing needs which are accommodated by the existing national 
emergency proclaimed by President Truman in 1950 but which are not 
specifically provided for in H.R. 3884. The bill should provide an ex- 
ception for each of the items I shall now refer to until such time as 
the Congress is able to consider permanent legislation to meet the par- 
ticular need. 

1. Contracting Authority 

(a) Since 1941, there has been available to the Department of De- 
fense authority to deal with unusual contract circumstances. Termina- 
tion of the national emergency would terminate such authority of the 
Department of Defense (and certain other agencies) under Public 
Law 85-804 (50 U.S.C. 1431-1435), the current form of the 1941 
statute. This statute provides authority to correct mistakes in con- 
tracts, to formalize informal commitments, to indemnify contractors 
against losses or claims resulting from unusually hazardous risks to 
which they might be exposed during the performance of a contract 
and for which insurance, even if available, would be prohibitively 
expensive, and to grant other extraordinary contractual relief. The 
Commission on Government Procurement, established by Public Law 
91-129, recommended to the Congress in 1972 that the authorizations 
of Public Law 85-804 be made available generally rather than being 
dependent upon the existence of a state of war or national emergency. 

(b) The procurement process wthin the Armed Services is utilized to 
accomplish certain major social and economic policies by the place- 
ment of contracts in labor surplus areas and in disaster areas, by letting 
contracts to favor small business, and to achieve a balance payments 
favorable to the United States. These collateral policies are achieved 
through the emeregncy exception to the requirement for formal ad- 



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vertisement under the Armed Forces Procurement Act (10 U.S.C. 
2304(a) (1) ). The use of this emergency exception is limited by regu- 
lation (32 CFR 3-201) to the achievement of the enumerated policies. 
In the light of the importance attached to these social and economic 
purposes, Congress should have the opportunity to consider the estab- 
lishment of appropriate contracting procedures on a permanent basis. 

2. Personnel Administration 

A number of personnel procedures which have become basic to the 
current military structure are based upon a state of emergency. Major 
legislative proposals which place many of these personnel procedures 
on a permanent basis have been proposed but have not been enacted. 
The latest and most comprehensive of these proposals, the Defense 
Officer Personnel Management Act, was introduced in January, 1974, 
but was not acted upon. It will be resubmitted to the new Congress in 
1975 and, if passed by the Congress, will cure most of the problems I 
shall now mention. These problems can be classified under two cate- 
gories — those that deal with Defense organization and those that deal 
with personnel entitlements. 

a. Defense Organization 

(1) Retention of the emergency authority of 10 U.S.C. 3444 and 
8444 is required for the following purposes: 

(a) To provide the authority to make temporary appointments 
of officers in the Chaplain, Judge Advocate, and Medical fields, 
who, because of constructive service credit in their specialities, are 
considered for permanent promotion earlier than line officer coun- 
terparts, and whose separation for failure of promotion might 
become mandatory under conditions inconsistent with the needs 
of the service. 

(b) To provide the authority of the President as Commander in 
Chief to grant temporary appointments to exceptional officers of 
the Army or Air Force. (The promotion of the Air Force 
astronauts.) 

(c) To provide the authority to appoint alien doctors in the 
Army and Air Force as officers to meet critical shortages of mili- 
tary medical personnel. 

(2) Over a period of years the personnel structure in the naval 
service has developed around several emergency authorities which 
now form the basis of officer management. These authorities include : 

(a) 10 U.S.C. 5231(c), which suspends existing limitations on 
the number of admirals and vice admirals of the Navy. If this 
authority is not continued, the Navy would lose approximately 
one-half of its three- and four-star admirals. 

(b) 10 U.S.C. 5232(b) suspends existing limitations on lieuten- 
ant generals of the Marine Corps. If this authority is not con- 
tinued, the Marine Corps would lose five of the currently au- 
thorized seven lieutenant generals. 

(c) 10 U.S.C. 5711(b) authorizes the suspension of the statu- 
tory limit of 5% for early promotion selections specified in section 
5707(c). 



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30 



(d) 10 U.S.C. 5785(b) is needed to suspend time-in-grade re- 
quirements for promotion to all Navy and Marine Corps grades 
except lieutenant and lieutenant commander. This statute is also 
the authorit